INFANT schools across the whole of Spain may be shut today as many of their workers are called upon to join a nationwide strike which has left unions divided. The Labourers' Commissions (CCOO), one of the...
'Clocking in' now compulsory to curb unpaid overtime
COMPANIES across Spain – without exception – are now required to have all their workers check in and out daily so as to keep a record of the exact hours they put in, and they could be fined up to €6,250 if they fail to do so.
A move brought in by minister for work and pensions Magdalena Valerio in conjunction with Spain's two largest unions, the Labourers' Commissions (CCOO) and General Workers' Union (UGT), the idea is not to 'police' staff who arrive a few minutes late, but to end the long-running culture of unpaid extra hours.
It is estimated that in Spain, staff work 5.6 million hours in overtime every week, but that 2.9 million of these hours are unpaid.
These non-remunerated extra working hours mean employers save themselves salaries worth 100,000 jobs – so, even though paid overtime is often welcome, especially if it is voluntary, 'free' additional hours are contributing to unemployment levels in Spain.
The law came in yesterday (Sunday, May 12) but, except for restaurant, bar and hotel workers, would have had little impact in the first 24 hours – the real changes would not make themselves felt until the first Monday after the legislation entered into force.
This new legislation is said to be 'without prejudice to' Article 34 of the Workers' Statute, which allows for flexibility – a factor that is to be encouraged in Spanish firms, given unions' and the government's ongoing campaigns to improve work-life balance and to ensure adequate rest and time available for family duties.
A daily working hours register is to be set up and organised 'via collective negotiation' – between companies and staff, their unions or staff committee representatives – or, in the absence of this, by the company 'subject to prior consultation' with 'workers' legal respresentatives' or workers themselves.
The aim of this is for the exercise and its operation to be agreed upon by all sides, not merely imposed.
Whilst secretary of union policy for the UGT, Gonzalo Pino, believes the move 'falls short' of what is needed and could be 'very difficult to apply', he considers it 'necessary' in order to 'restore common sense to labour relations in Spain, a European Union country'.
The UGT says the effects on employees themselves will only be positive, since they will be aware, and able to prove, the number of hours they work, which will 'avoid overtime fraud' as well as companies taking staff on full-time but only giving them part-time contracts, with the rest of their wages made up in cash in hand, in a bid to save themselves Social Security contributions and income tax paid on staff's behalf.
It will also help in dispute resolution, the UGT says.
Records must be kept for a minimum of four years, which is standard for data protection in Spain and is the typical period for which debts accrued can be reclaimed before they expire under the statute of limitations.
All legal representatives of workers, the workers themselves, work inspections and the Social Security office will have the right to inspect the registers.
Fines are set by the Law of Social Order Offences and Penalties (LISOS), and range from €626 for minor faults up to €6,250 for major or repeat incidences.
Each fine applies per company, not per staff member, but the scale of fines levied means they can be adapted according to how many employees are involved in a company's failure to comply with the law.
Whilst the requirements are already in place and, in theory, fines could have been levied from opening yesterday, in practice there will be an undefined period of grace to allow companies to set up the register – even though Sra Valerio says firms were formally advised via the State Official Bulletin (BOE) on March 12, meaning they have 'already had two months to set up their systems' and work inspectors have already been given instructions to make impromptu visits and examine registers.
This said, work inspectors have been requested to act 'reasonably and logically' and to 'use their common sense' and to 'advise, consult, assist and resolve' before issuing fines.
Possible complications, especially for non-presential employees
How registers are compiled is open to conjecture: whilst the UGT fears less-than-scrupulous employers may well doctor records, or have staff sign incorrect or blank ones under coercion, especially if these are handwritten rather than digital, Sra Valerio says the work inspectors will be responsible for deciding whether the registers are a faithful reflection of actual hours worked.
Experts in employment law believe some hurdles could crop up for companies who operate 'with certain flexibility of hours' rather than 'rigidly adhering to a policy of presenteeism', and that small and medium-sized businesses could be the ones who struggle most to comply.
Gonzalo Pino dismissed these concerns, saying 'firms will just have to adapt to modern times'.
Other doubts have cropped up about those companies whose workers start or finish their day at home or who work entirely from home, or for jobs where some days may end or begin in other premises such as hotels or restaurants – like working breakfasts or business dinners – or where staff members' commute is also considered 'work', such as travelling salespersons or account managers who may be a long way from home when their official duties are complete.
These employment law experts also question whether the legislation is helpful for firms who pay their staff according to what they do, rather than how long they spend doing it – in these cases, the working day may often involve atypical hours, ranging from one or two a day at the most through to 12 or more, depending upon deadlines and projects, and these hours and their structure may be self-imposed according to the individual employee's personal choice based upon knowledge of their own productivity.
For non-presential work, where staff may not necessarily be on the business premises the whole time they are attending to their jobs, tools such as GPS tagging and biometric data – fingerprints, facial or even eyeball recognition – have been proposed, but companies and unions alike consider these may be intrusive to the employee and may be in breach of the Data Protection Law.
It remains to be seen which methods are agreed between firms and their staff and whether employees who do not need to be on the premises or stick to a given timetable are able to record their hours worked as easily as more straightforward cases, such as those employed in shops, bars or 100% desk-based office work.
More Education & Employment content
MERCADONA supermarkets are seeking new employees in practically every store in Spain for the summer and have started advertising already. With a series of store revamps ongoing across the country, involving expansions...
THE SOCIALISTS' victory in last week's general elections could spell a 'turning point' for workers across the country, according to the leader of one of Spain's largest unions. Already, the party led...
NEARLY 25,000 workers are due a refund in the next few days for having overpaid in Social Security contributions, according to Spain's ministry of employment. Around €26.1 million is to be paid back to people who...