Spain: But Do We Clock in or Not?

29 March 2019 - Patricia Rivera Almagro

Flexibility and family-work balance under seige

Yes, you clock in. It is that clear from the new wording of Article 34.9 of the Workers’ Statute, by virtue of which the Executive branch validates the mandatory nature of a measure that has been the object of discussion since the end of 2018: registration of the workday.

Article 7.5 of the Law on Infractions and Penalties in the Social Order renders it even more clear: non-compliance with the regulations established for such purpose for this new law is officially classified as a “serious offence” which, in accordance with Article 40.1 b of the same text, could give rise to a fine from 626 € to 6,250 €.

The registration of the workday should be kept for four years, and the data should be available to workers, their legal representatives and the Labour and Social Security Inspectorate.

And the adaptation period? The sixth and final clause of this Royal Decree-Law (Royal Decree-Law 8/2019, of 8 March, on urgent measures for public order and the fight against job insecurity), by virtue of which Article 10 makes way for this new measure, provides a fleeting term of two months for adaptation: companies are to get to work implementing systems for registering the workday and adopting any internal measures and policies necessary for compliance. That is, two months since publication in the Official State Gazette of said legal text (12 March 2019), which puts us at 12 May 2019, moment from which there will no longer be any excuse or pardon for those companies that fail to comply with the regulations on workday registration.

It seems, thus, that it is time to roll up our sleaves and return to something that, it seemed, we had gotten past: the implementation of a monitoring system for the workday of each worker, in contrast to the current system of rendering services based on trust, management of one’s own working time and, finally, the rendering of more efficient and effective work. This monitoring system, nevertheless, in a versatile and digital age such as ours, in which the claiming (above all by the youngest generations, millennials and post-millennials) of greater scheduling flexibility and work-life balance is the order of the day and functions better with the new forms of work, does not fit very well according to the experts. This is because a measure such as this could directly go against that idea of scheduling flexibility and work-life balance that it seems are, little by little, working their way into companies and to which the legislation alludes in Article 34.8 of the Workers’ Statute, just five paragraphs from the new measure adopted by the Executive Branch.

We must ask ourselves whether this measure indeed implies a step forward. Or, on the contrary, does it imply taking two steps back? It must be kept in mind that among the principal reasons for the adoption of this measure are the increase in the number of overtime hours over the course of 2017 and 2018, the lack of compensation for such hours in 48% of cases and that 35% of the complaints received in 2018 by the Work and Social Security Inspectorate referred to working time. This seems to be at the heart of the matter with respect to the adoption of this measure. Taking into consideration the fact that there is already a specific regulation included in Article 35.5 of the Workers’ Statute relative to overtime hours and the daily registration of the overtime hours performed, to what degree is it worth it to risk the progress made against the old concept of “presentialism”?

After all, it must be noted that, in accordance with Article 86.2 of the Spanish Constitution, this Royal Decree-Law is still pending validation or repeal, which must take place within the term of 30 days following its promulgation. The political context in which we find ourselves must also be taken into consideration.

We could say, therefore, that it is a very premature measure. However, until its validation or repeal, there is no other option but to get moving in terms of adopting the measures, internal policies, collective negotiation or company agreements necessary for compliance.

More information: Patricia Rivera