The obligatory nature of a daily record of the working day does not have an express normative recognition, except in part-time contracts (art.12.4.h ET) and in some special days (RD 1561/1995). Only daily registration is required, generally, "for the purpose of calculating overtime" (art.35.5 ET). In response to the jurisprudence, which denies a generic obligation, the Government has just announced its intention to force companies to a daily record of working hours of all workers
The proposal establishes a business obligation to record the daily work of each worker, including time of entry and exit (new art.34.1 ET). The organization of the time register is re-sent to collective bargaining. Similarly, it is expected that the Government may, by regulation, adapt the daily record to special days and situations. The proposal typifies a new administrative infraction for breach of this business duty with a harsh sanctioning regime (art.7 LISOS).
The intention of this political initiative is praiseworthy because it addresses the detected social problem of overtime not computed or paid to workers. It should be remembered that the daily record of the day is a tool for controlling working time that, from its origins, benefits the company, which thus verifies, with rigor, compliance with the contractual labor obligations of its employees. The subsequent relaxation of this business control has gone hand in hand with the acceptance of margins of tolerance in the flexibility of working time, in favor of the worker. It is curious to see how this rigid tool of employee control now becomes a union demand, and of the left, to avoid abuses in overtime. But this perspective of origin should not lose sight of who else can harm a daily record, sometimes it is the workers, who from a flexible and tolerated use of their effective work time, can become very controlled in their face-to-face work, including tickets, specific absences, and departures from their workplace.
Another reason for the disuse of this classic tool of control is the generalization of the flexible schedule, of its combination sometimes with telework, and of the irregular days, encouraged by the own norm and developed in many collective agreements. Business needs and family conciliation force an irregular distribution of the day, which marries poorly with a rigid entry and exit.
The underlying problem of this type of proposal is that they continue to conceive work for others as a presence of working hours in a physical space, more typical of the nineteenth century, when the ways of working in the 21st century have led to a lower importance in person and a higher incidence of the objectives and results marked in a work contract. In fact, in sectors and companies where daily logging is useful, because presence is hegemonic, it is usual to use this tool provided in collective agreements or by own business initiative. Its generalization can further encourage its implementation in these realities but also create problems where this formula is not efficient or adapted to their working conditions.
If the path of the proposed reform is a mandatory hourly record for all companies, the standard should address all these specialties and singularities, with an essential role of collective agreements and specific regulations, as the latest document of the Government. There are, I believe, other less problematic ways to tackle the problem of unpaid overtime. It is possible to detect sectors where, due to judicial casuistry, this problem exists and to make a specific regulation obliging the daily registration of working hours (for example, the financial sector). A general duty to verify work time can be recognized to a greater extent and collective bargaining can be re-established to establish or not a time record, be it daily, weekly or monthly. A presumption favorable to the worker can be articulated in the judicial economic claims of overtime, the company having to prove that they have not been performed, which will motivate, in their own interest, the corporate control and limit the abuse, without sacrificing any of the flexibility in the organization of work.
In the face of a praiseworthy goal, there can be different paths and the success consists of choosing the one that creates fewer problems for companies and workers and the one that best adapts to the labor reality of the 21st century. It is more than doubtful that the generalized mandatory registration of working hours meets both conditions.
Jesús Lahera He is a Full Professor of Labor Law at the UCM and consultant of Abdón Pedrajas & Molero