One of the outstanding issues in the workplace today is how to control working hours and overtime in Spain, as there is no compulsory legal control system.
Currently, more and more companies are implementing a flexible working day to improve the work environment and the work-life balance of employees, as well as to reduce absenteeism, etc., with the aim of being more competitive, improving productivity and retaining talent. Although this flexibility is an obvious improvement in working conditions, it presents a disadvantage in that there is no direct control over working and overtime in Spain.
It is very important that companies respect the legislation on working hours and overtime in Spain, as the Labour and Social Security Inspectorate in Spain is intensifying control in this area.
The maximum duration of the working day and its distribution is regulated by the Collective Agreements, always respecting the minimums established in article 34 of the Workers’ Statute.
Factors – overtime in Spain
Companies must take into account, among other factors, a series of details when working overtime is necessary in Spain:
- Overtime is voluntary for the worker.
- Overtime must be paid according to that established in the collective agreement, but it can never be less than the price of an ordinary working hour or compensated for with time off.
- The number of overtime hours may not exceed eighty a year if the employer decides to pay for them, and overtime hours are not counted as compensated for by time off within the following four months.
The law regarding the overtime in Spain
Overtime is regulated in article 35.5 of the Workers’ Statute:
“For the purposes of calculating overtime, each worker’s day shall be recorded daily and shall be totalled in the period fixed for the payment of the remuneration. Furthermore, a copy of the summary shall be delivered to the worker in the corresponding invoice.”
The question we ask ourselves is: do companies have to make a daily record of all working hours, or only overtime?
The Supreme Court, in its judgement of 23 March, 2017, (Supreme Court Ruling 246/2017), regulates that it is only necessary to have a record of the working day when overtime in Spain is performed.
For the labour inspectorate, a record of the working day is still a possible means of proof, although for the time being they will not be able to demand such control from employers. This is only temporary because among one of the main legislative reforms for the year 2018 we must consider the proposal of the Law of the Congress of Deputies, in which the revised text of the Workers’ Statute Law is approved. This has been amended to include the obligation of keeping a daily record of the clock in and clock out times of each worker.
On the other hand, it must be kept in mind that workers with part-time contracts cannot work overtime, except in order to prevent or rectify accidents or in cases of extraordinary or urgent damages.
These employees can work extra hours, but these can never exceed 30% of the ordinary workday and must be agreed in advance by the company and the worker.
For this type of worker, the Law does require a daily control of the working day.
As we are dealing with a sensitive issue, which is difficult to control and subject to numerous Government debates, the best option is for companies to keep a record of the clock in and clock out times of all employees.
Summary
In summary, since there is no compulsory legal control system, the best solution for businesses is for each company to implement the system that best suits their needs, is simple to control the overtime in Spain and does not entail an administrative burden for the company or for the employee.
Soledad Moriche
