Royal Decree-law 8/2019 on urgent measures for social protection and the fight against labor insecurity with respect to working hours recently amended article 34 of the Workers’ Statute and established a duty for companies to effectively guarantee the registration of daily working hours as of May 12, 2019. Furthermore, the Court of Justice of the European Union judgment of May 14, 2019 confirmed this new obligation at a European level.

The registration of daily working hours was implemented by the Ministry of Labor and Social Security through guidelines published on May 13, 2019, the main purpose of which is to facilitate the practical application of the regulation, in light of the numerous doubts that have arisen, particularly in a labor situation that is constantly changing and increasingly encouraging work from home, mobility and flexibility, etc.

In this context, with new company obligations relating to daily working hours and given its importance to the issue, it is worth considering the Supreme Court judgment of March 19, 2019, in which the Court explains and defines what should be understood as working time and, amongst other issues, determines that programmed activities outside working hours must be considered as effective working time.

In doing so, the Court takes into account both Spanish law (articles 34.1 and 34.5 of the Workers’ Statute) and European law (article 2.1 of Directive 2003/88/EC), as well as the company collective bargaining agreement. Article 31.B.1 b) of the agreement states that:

Activities outside working hours: the time that workers in the industry devote to special commercial events outside working hours shall be voluntary and compensated by the equivalent amount of time off within the next four months after the event, while maintaining the commercial event”.

We should therefore bear in mind that, in the specific case analyzed by the Supreme Court, there are a number special issues relating to activities outside working hours:

  • Firstly, they are voluntary;
  • Secondly, they are compensated with time off, and
  • The compensatory time off must be taken within four months after the event.

Although the Court does not mention the issue in its legal reasoning, it is true that this type of compensation as time off for the same time devoted to such commercial events outside working hours is considered in a similar way as overtime by the Workers’ Statute, which we should recall is considered as effective working time.

However, the Supreme Court considers that these activities performed outside working hours is working time mainly because it fulfills the definition of working time established by case law and by Directive 2003/88/CE. Article 2.1 of Directive 2003/88/EC defines working time as “all the time in which a worker remains at work and is available to his/her employer to perform his/her activities or functions, in accordance with national legislation and practice”. With this more specific definition, the Court of Justice of the European Union defines working time as all time in which a worker is available to his/her employer, without considering the intensity of the work performed.

In spite of the specific nature of the case, this judgment opens the door to a possible consideration of a number of work-related activities performed outside working hours being considered as effective working time.

It therefore means that we will have to consider analyzing all possible cases at companies, in order to take them into account for the purposes of daily working hour registration.

In short, all this new legal framework makes it necessary to analyze what can be potentially considered as effective working time in all company situations, based on the type of activity carried out and the provisions of the applicable collective bargaining agreement, in order to prove compliance with the relevant legal obligations.

Sara Luján

Garrigues Labor and Employment Department