The Director General of the Labour Inspectorate has published Instruction 1/2017 dated 18 May, which complements its previous Instruction 3/2016 on “Intensification of control over working hours and overtime”. It adopts the criteria of the Supreme Court and declares that a company cannot be sanctioned for not having a record of the ordinary working hours of its employees.
As we informed in our legal alert of 7 April 2017, the Supreme Court declared in judgements dated 23 March and 20 April 2017, that companies have no legal obligation to keep a daily record of their employees daily working hours and there is only an obligation to record overtime, when this is effectively worked.
As we mentioned at the time, it remained to be seen what the response of the Labour Inspectorate would be. Up to now, the Labour Inspectorate has been sanctioning companies that did not keep the aforementioned records with fines ranging from €626 to €6,250, based on Instruction 3/2016 of the General Director of the Labour Inspectorate dated 23 March, taking into account the previous judicial criteria that declared the existence of such obligation. Instruction 3/2016 characterized non-compliance with the same as a serious breach.
Some of the key questions have been answered with Instruction 1/2017 of 18 May, which complements Instruction 3/2016, reviewing those aspects which are affected by the doctrine of the Supreme Court and ratifying the validity of the rest of its content.
The basic points of the new Instruction are:
1.Companies, in general, are not legally obliged to keep a record of the daily working hours and, therefore, the absence of such registry is not a constituent element, as such, of an infraction of the social order which is subject to a sanction. This is without prejudice to the fact that legally there is such an obligation in respect of part-time workers, road transport mobile workers, merchant shipping or railway workers.
2.The foregoing does not exonerate companies from respecting the legal and conventional limits in terms of working hours and overtime, and the Labour Inspectorate is responsible for ensuring this is complied with. Although it is not mandatory to record the working hours, it can be used as evidence wherever it is implemented. On the other hand, the non-recording of working hours will not prevent the Inspectorate from carrying out verification actions in order to detect a possible non-compliance with the daily working hours. In this regard, if the company does not have a computation of all of the hours worked, the Inspectorate may base the non-compliance detected on other types of information gathered during the visits, information that can be complemented by logical reasoning or deductions, according to the doctrine of circumstantial evidence.
The Inspection criteria having been modified ex officio, the question also remains as to what will happen regarding the sanctions already imposed. It is clear that the final sanctions will be fixed, but what will happen with the sanctions that are not yet final? Will it be the Inspectorate itself that files the sanctioning procedures ex officio, or will the companies have to proceed to appeal?