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LESSON 2: WORKING TIME
1. INTERESTS PROTECTED
2. ORDINARY WORKING TIME
a. Duration of working time b. Minimum resting time
**3. SPECIAL WORKING TIME
- REDUCTION OF WORKING TIME
- EXTRAORDINARY HOURS
- RECORDING WORKING HOURS
- SHIFT WORK AND NIGHT WORK
- SPECIAL RULES FOR UNDERAGE EMPLOYEES
- WORK CALENDAR, PUBLIC HOLIDAYS, AND ANNUAL HOLIDAYS
*** Working time is assessed to protect health A night worker cannot do overtime 1. INTERESTS PROTECTED To analyze the regulations on working time, we need to know the four interests that are protected by these regulations. These are: - They are present in the working time regulations
- Historically - Health protection. This is the historical origin for working time provisions that were established to prevent employees to have excessive working hours.
- Now - Flexibility and adaptability of the workforce to changes in the company. This aspect has become increasingly important in employment relationship since the financial crisis of the 1970s. In the 1990s, many provisions of the Estatuto de los Trabajadores were modified to introduce flexibility in working time regulations.
- Now - Sharing existing work. Limiting employee working time can help to increase the employment rate if companies whose activity increases engage new employees once their existing employees have reached the limits of their working time. However, despite the structural unemployment and the severity of the situation in which Spain has found itself since the 2008 financial crisis, not every ET initiative has been introduced.
- Now - Work-life balance. Attention to this aspect has increased in recent years, not only because the Spanish Constitutional Court considers it a fundamental right but also because some aspects of the work-life balance relate to indirect discrimination on the grounds of gender. Some elements of the working time regulations on flexibility for protecting work-life balance are mentioned in Lesson 4 (on changes to working conditions requested by the employee). Concern at the European level on this question has also increased. See, for example, DIRECTIVE (EU) 2019/1158 on
work-life balance for parents and carers (which repeals Council Directive 2010/18/ EU), which asserts that work-life balance policies should help to achieve gender equality by promoting the participation of women in the labour market and the equal sharing of caring responsibilities between men and women, and by closing the gender gaps in earnings and pay (6th^ Whereas). In the same sense, and not only linked to the aim of protection of work-life balance but also to ensure employees` health, the Ley Orgánica 3/2018 of Personal Data Protection and Digital Rights Guarantee foresee the right to digital disconnection in the workplace. A right that has been claimed all around the world as the technology has increased the possibility of been available anytime. The concern to such an overuse of managerial prerogatives led to the legislature to set few rules about digital disconnection in the workplace. Thus, art. 88 of Ley Orgánica 3/2018 recognizes to employees and civil servants the right to digital disconnection, when out of their duties, in order to guarantee the respect for their rest time, permits and vacations, as well as their personal and family privacy. However, the legislation is rather poor as the modalities for exercising this right are to be regulated by the collective bargaining or, in its defect, agreed between the company and the representatives of the workers. The regulation says nothing in case such modalities are not established in any of those ways. It only says that these modalities shall take into account the nature and purpose of the employment relationship, and must strengthen the right to conciliation of work activity and personal and family life. The art. 88 concludes with an obligation for the employers. This obligation consist in developing, after hearing the representatives of the workers, an internal policy aimed at employees, including those in managerial positions, in which they will define the modalities for exercising the right to disconnection and the training and awareness actions of the personnel on a reasonable use of the technological tools that avoid the risk of computer fatigue. In particular -it finishes- the right to digital disconnection must be preserved in cases of total or partial realization of remote work and in cases of work in the domicile of the employee linked to the use of technological tools. Once more the legislature seems to provide protection when, in fact, it does not contemplate measures to render it effective (rules applicable in defect of agreed regulation or sanctions when the employer does not fulfil his/her obligations).
irregular working time. The employer must inform the employee within five days and respect all rest time established by law (art. 34.2 ET).
- The limit to working time established by law refers to “effective work”. Article 34.5 ET defines this concept: The working time shall be calculated in such a way that, both at the beginning and at the end of the daily working day, the employee is at his/her work post. This means that the time during which the worker must be available but not present at the workplace does not count as “effective work” unless the employee is required at the workplace within an abusive time limit. For example, stand-by time which a worker spends at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities, must be regarded as “working time” (ECJ Case C-518/15). 2. Daily (art. 34.3 ET) The number of ordinary hours of effective work may not exceed nine hours a day unless a collective agreement or an agreement between the company and the employees’ representatives establishes a different distribution of daily working time. In all cases, the compulsory resting period between working days must be respected. From these regulations we highlight two ideas: flexibility (the nine-hour limit is not rigid because it can be extended) and the concept of “effective work” (as previously explained). Question to bear in mind: Is it possible, then, to work 24 hours a day 7 days a week? B. MINIMUM RESTING TIME (34.3 and 37.1 ET) The regulations on the duration of working time do not protect the health of employees because flexibility has been the priority since the legal reforms of 1994 and 2012. What really protects employee health is the minimum resting time regulated by Law, which – generally speaking – cannot be reduced. 1. Daily (art. 34.3 ET) The aim of daily resting time is to protect employee’s health. At least 12 hours must elapse between the end of one working day and the beginning of the next (as we will see later, a specific provision applies to underage employees). Although this limit must be respected as a general rule in every case, a few exceptions exist in special circumstances – for example, when changing shifts in cases of shift work (RD 1561/1995). 2. Weekly (art.37.1 ET) The aim of weekly resting time is to protect employee health and give employees leisure time to strengthen their social and family lives.
All employees (though special rules apply to underage employees and certain other cases) are entitled to a minimum weekly rest period, that can be cumulated by periods of fourteen days, of one and a half continuous days, which, as a general rule, must include Saturday afternoon or Monday morning, and all of Sunday. This resting period is retributed. According to the regulations, an employee may work continuously for eleven days and rest for the following three. The company can decide for itself how to distribute the weekly rest period, while workers’ representatives can oppose the decision only if the collective agreement allows them to. Questions arising from this regulation:
- (^) As it refers to Sunday as the preferable day of rest, it is not mandatory to rest on Sundays. Why does the legislation prefer Sunday as the rest day? Is it due to the influence of the Catholic religion? If so, could it be considered discriminatory on the grounds of religion? These questions are important because followers of religions other than Catholicism may ask to have their weekly rest day on a different day without being discriminated against. On this issue, two court decisions are important:
- The Court of Justice (EU) in Case C-84/94, applying the former Council Directive 93/104/EC on working time, considered that this European legislation lays down the minimum health and safety requirements for the organization of working time. The above Directive imposed a minimum weekly resting period that, in principle, had to include Sundays. This reference was due to be eliminated because in its decision the Court could not understand why resting on Sundays is more closely connected with worker health and safety than any other day of the week.
- The decision of the Spanish Constitutional Court 19/1985, which stated that employees cannot impose their working conditions on their employer on the grounds of religious beliefs (art. 16 CE). For example, an employee who became a Seventh-Day Adventist was unable to demand to be able to rest on Saturdays rather than on Sundays as required by her religion (art. 38 CE). The conflict between art. 16 CE (freedom of religion) and art. 38 CE (freedom of enterprise) that arose from this case was resolved in favour of the latter by the Spanish Constitutional Court. This decision also asserts that although the origin of Sundays as the preferable day of rest derives from Catholicism, this is not a religious-based right and can therefore not be used to allege discrimination on religious grounds. Finally, the decision also considers Sunday to be the most suitable day for establishing work-life balance, which justifies its preference for resting on that day (however, the judgement of the Court of Justice in case C-84/94 does not consider this issue).
- To protect the productive needs of companies, these special regulations allow for greater flexibility (in, for example, agriculture, commerce, the hospitality industry, maritime work, transport and shift work, etc.). For example, in maritime work, the minimum daily rest period is eight hours in the merchant navy and six hours in fishery (art. 17 RD 1561/1995).
- To protect employee health, these special regulations establish a reduction in working time and/or an increase in resting time (e.g. for jobs with environmental hazards, agricultural work in difficult conditions, working in underground mines, building sector work, work in industrial freezers, night work, etc.). For example, employees working underground have the right to a weekly rest period of two days (art. 27 RD 1561/1995). 4. REDUCTION IN WORKING TIME Spanish regulations establish a reduction in working time for various reasons. Sometimes this reduction will be retributed as it may be counted as effective work but sometimes it will not. 1. Health and safety reasons Retributed reductions in the working day that compute as working hours are set for health and safety reasons. ○ Art. 19 ET: training in safety. Employers must provide all hired employees with adequate practical training in safety and hygiene. The time invested by the employee on this training will be computed as working time. ○ Art. 7 RD 664/1997 and art. 6 RD 665/1997: hygiene. These two specific regulations govern specific risks. An employee has the right to ten minutes before and after their working day for hygiene reasons. This is counted as working time. ○ Art. 23.3 ET: professional training. Employees with at least one year of seniority in the company have the right to a leave of 20 hours per year for professional training purposes (for more information, see lesson 5). 2. Work-life balance Reductions in working time to protect work-life balance have existed since at least the first version of the Estatuto de los Trabajadores (1980). Since then, these rights have increased
in number and duration (there are more of them and they cover more situations). These rights are: ○ Care of new-born babies The new regulations avoid talking about fathers and mothers or men and women in order to bring legislation closer to the reality of heterogeneous family types. ■ Art. 37.4 ET: breastfeeding. Employees are entitled to a one-hour leave or half-hour reduction in order to breastfeed a baby up to nine months old. This applies to any new-born baby the employee is in charge of, whether by birth or through adoption. One-hour leave consists of an absence for one hour at any time of the working day provided that the employee is at their job at the beginning and end of the working day. The half-hour reduction means entering the workplace 30 minutes after the working day begins or leaving the workplace 30 minutes before it ends. A new provision was introduced by Royal Decree 6/2019 in an attempt to promote the sharing of family responsibilities: When both parents or adopters... exercise this right with the same duration and regime, the period of enjoyment may be extended until the infant reaches twelve months, with a proportional reduction in salary since the child is older than nine months. As this is an individual right, both employees in a couple will hold the right but there will be no possibility to transfer one’s right to the other. For example, in the case of a couple who share a child, both employees will be entitled to this right (but it is not possible that one of them benefits the right corresponding to both). However, if two employees in the same company generate this right in relation to the same child, the employer may limit the simultaneous exercise of the right for justified reasons related to the company’s operation and these reasons must be notified in writing. This means that the employer can limit the right subject to the following principles:
- Only the rights of employees who work for the same company can be limited.
- Only the rights of employees who generate this right from the same subject (e.g. not twins) can be limited.
- Only the right of employees who generate this right from the same subject can be limited.
- The successive exercise of this right cannot be limited. For example, the above three brothers will be able to reduce their working time in successive periods of four months in the year, one after another.
- This right may be limited only with justified reasons. ○ We should remark the amendment to art. 34.8 introduced by Royal Decree 6/2019 that has reinforced the right to work-life balance, since previously this article established only a hypothetical right in relation to an employee’s work- life balance (since the right could be recognised only in the terms established in the collective agreement or agreement reached individually with the employer, i.e. no agreement, no right). However, the TC defines work-life balance as a fundamental right (STS 3/2007) and requires companies to provide a justified reasoning when denying the work-life balance measures requested by their employees. Royal Decree 6/2019 introduced this jurisprudence into the legal regulations, thus reinforcing this legal right. ○ For gender-based violence and terrorism : art. 37.8 ET Employees are entitled to introduce changes to their working time in order to protect their lives and physical integrity. To obtain protection or the right to full social assistance, employees who are considered victims of gender violence or terrorism (as defined in the 14th final disposition of the ET) are entitled to reduce their working schedule, with a proportional reduction in salary, or to rearrange their working hours by adjusting their schedule according to a flexible working schedule or other working arrangement used by the company. This is a real right since if an agreement cannot be reached, the employee can decide the specifications of the measures to be taken, subject to the limitations outlined in art. 37.7 ET. a. Common question: who decides the new working conditions? Establishing the new working conditions once one has decided to exercise the above rights has become one of the most controversial matters in this area, since the company does not wish to lose flexibility and its managerial prerogatives in relation to working time and employees wish to adapt the new working conditions to their own interest.
Art. 37.7 E.T. deals with this problem. The first rule stipulates that it is up to employees to specify the timetable and period of enjoyment of the rights provided for in Sections 4, 5 and 6 of article 37 in their ordinary working day. However, collective agreements may establish criteria for the specific time of the reduction in working hours referred to in section 6 (and only those) in response to the employee’s work-life balance rights and the company’s productive and organizational needs. Except in cases of force majeure , employees must give their employer prior notice (two weeks or as stipulated in the applicable collective agreement) specifying the date on which the breastfeeding permit or reduction in working hours will begin and end. Any discrepancies that arise between the employer and the employee in relation to timetable specifications or the establishment of periods set forth in Sections 4, 5 and 6 of article 37 will be resolved by the competent jurisdiction through the procedure established in Article 139 of the Ley Regulador de la Jurisdicción Social.
5. EXTRAORDINARY HOURS (OVERTIME) (art. 35 ET) Concept: Any working hours provided outside the maximum term of an ordinary working schedule are considered extraordinary (extra) hours. Despite this definition, and by dint of existing flexibility in limits to the ordinary working day, some uncertainty exists regarding which hours are considered extraordinary. This may occur when an employer applies the flexible distribution of working hours in accordance with art. 34.2 ET. Types: There are two types of extra hours depending on the aim of the extended period of time required of employees: a. For productive reasons. Generally, extra hours are required for productive reasons, e.g. because the company needs greater employee activity to satisfy demand for production. Overtime for such a reason is normally voluntary, requires an agreement between the employer and the employee, and can therefore never be imposed (art. 34.4 ET). Extra hours are voluntary for both employer and employee. The potential agreement does not require any justifying cause (though justification will obviously exist). However, employees can surrender this voluntary nature, thus making overtime compulsory. This can be done through worker’s representatives (in a
81/2016) However the matter reached the European Court of Justice (ECJ), which, in its ruling C-55/18, declared that Member States are required to set up a system that enables the length of time worked each day by each worker to be measured. Accordingly, Royal Decree 8/2019 has expressly introduced this obligation (art. 34.9 ET).
- Another legal limit concerns categories of employees such as miners (RD 1561/95), underage workers (6.3 ET) and night workers (36.1 ET).
- To increase job opportunities available to employees, legislation allows the Government to remove or reduce the maximum number of extra hours for a specific length of time either in general or for certain branches of activity or regions. However, the Government has never taken such measures, even during the financial crisis of 2008 when the unemployment rate reached 27%. b. For non-productive reasons ( force majeure ). These are extra hours worked to prevent or repair accidents or other extraordinary and urgent damage. These are mandatory. When calculating the maximum number of extra hours permitted, these hours are not taken into account (without prejudice to their compensation as extra hours).
6. RECORDING OF WORKING HOURS Following ECJ case 55/18 (CCOO), a new Section has been added to art. 34 (34.9 ET), according to which companies have to guarantee the daily recording of working hours, which must include the employee’s specific start and end time of their working day, without prejudice to the flexibility of working time established in this article. This article establishes that this obligation must be implemented through collective bargaining, a company agreement or, if neither of these procedures is successful, by decision of the employer after consultation with workers’ representatives. It also asserts that the company is obliged to keep these records for four years during which time they must be accessible to employees, their representatives and employment inspectors. Numerous problems have arisen regarding the enforceability of this obligation since in some employments relationships it may be not so easy to keep such control. There is also a great deal of opposition from companies, probably because they are requiring their employees to do overtime while ignoring the regulations. Some courts have sentenced that only effective
working time should be counted (e.g. time spent in the lavatories or smoking cigarettes should not be considered part of the working schedule since it is not effective work ) This is the case of Audiencia Nacional, Sala de lo Social, Sentencia 144/2019, 10 Dec. Rec. 232/2019.
7. SHIFT WORK AND NIGHT WORK The legislation envisages several measures to protect the health of employees in these categories. Some of these are effective while others are simply programmatic. This is because here the ET does not fulfil its duty to provide specific measures to comply with the more general idea of protection provided for in EU Directive 2003/88 CE. A. Shift work. According to the above directive, ‘shift work’ means any method of organising work in shifts, whereby workers replace each other at the same work stations according to a certain pattern. This pattern may be rotational, be continuous or discontinuous, and involve the need for workers to work at different times over a given period of days or weeks. Effective rights for shift workers. These employees must at all times enjoy a level of health and safety protection that conforms to the nature of their work and includes suitable protection and prevention services that are equivalent to those of other workers in the company. This is an effective right since it is developed in the Ley de Prevención de Riesgos Laborales (art. 16). Programmatic rights (art. 36.5 ET). On the one hand, the EU Directive establishes that member states shall take the measures necessary to ensure that an employer who intends to organise work according to a certain pattern takes account of (i) the general principle of adapting work to the worker, with a view in particular to alleviating monotonous and repetitive work (depending on the type of activity), and (ii) of safety and health requirements, especially as regards breaks during working time. On the other hand, the ET establishes that an employer who arranges work in the company according to a certain rhythm must take into account the general principle of individual adjustment to work, particularly in order to mitigate a monotonous and repetitive task according to the type of activity and requirements in employee safety and health matters. These requirements are particularly taken into account when determining the rest periods enjoyed during the working schedule. As we can see, the ET does not adopt any provision for satisfying the requirements of the EU Directive. The ET simply repeats what Directive 2003/88 says without
more rigid for night workers (though there is still a certain degree of flexibility).
- Those who have health problems due to their night work are entitled to be assigned to a daytime work post available in the company for which they are professionally qualified. The change of work post is carried out in accordance with the provisions established in Articles 39 and 41 ET.
8. SPECIAL RULES FOR UNDERAGE EMPLOYEES Underage employees have more legal limitations in their working time because they require more free time to develop their personality and academic and professional skills. These limits affect: - The Ordinary Working Day: up to a maximum of 8 daily hours regardless of the number of employers for whom the work is provided. For example, if they have a contract of employment for 6 hours with one employer, they cannot engage in another contract of employment for more than 2 hours (3rd paragraph, art. 34.3). - Overtime: this is not permitted (art. 6.3 ET) except when due to force majeure. - Night work: this is not permitted (art. 6.2 ET). - Dangerous work: this is not permitted. (art. 6.2 ET). The royal decree of 26 July 1957 develops this prohibition and establishes a list of forbidden activities, e.g. any kind of work carried out at a height of over four metres and any kind of activity that may be dangerous to health due to excess physical effort. - Weekly rest: this is at least two consecutive days per week, which are non- accumulative (art. 37.1 ET). - Special scheme for the continuous working day. Generally, employees have the right to a break of 15 minutes every 6 hours. However, underage employees have the right to a half-an-hour break every four and a half hours (art. 34.4 ET). - Royal decree 1561/95 (art. 1.3 RD) on extensions of working time does not apply. 9. WORK CALENDAR, PUBLIC HOLIDAYS, AND ANNUAL HOLIDAYS A. Work calendar (34.6 ET & Disp. Ad. III of RD 1561/1995). Each year, the company draws up a work calendar after consulting with workers’ representatives and receiving their report, and exhibits a copy of the calendar in a visible place at each work centre. This general calendar applies to the whole undertaking, which includes holidays, shifts, the working schedule, etc. An employee’s personal calendar is agreed directly with the employer.
B. Public Holidays (37.2 ET). The aim of public holidays is not to protect health but to commemorate certain socially important civil events, such as 1st May and 12th October. These days are remunerated and are not recoverable. The total number of public holidays is 14 days, 12 of which are established jointly by the Central Government and the Autonomous Communities, and 2 of which are established by the City Halls. Work done on public holidays must have a higher retribution. Spain signed a concordat with the Holy See (1979) by which the State agrees to respect certain religious festivities such as 8th and 25th December and 1st November. Other religions should conclude agreements with employers’ representatives (as has occurred for activities with a broad presence of immigrants from Muslim countries, e.g. agriculture and the building sector). In my opinion, this may lead to discrimination on the grounds of religious beliefs since only Christianity is entitled to this recognition. So far, the Court of Justice of the European Union (CJEU) has affirmed that the only direct discrimination on the grounds of religion refers to national legislation where, firstly, Good Friday is a public holiday only for employees who are members of certain Christian churches and, secondly, only those employees are entitled (if they are required to work on that public holiday) to a payment in addition to their regular salary for work done on that day (case C-193/17, Cresco Investigation ). C. Annual Holidays (art. 38) Aim. The aim of these holidays is to protect employee health and strengthen personal relationships. Duration. The minimum duration is 30 natural days per year or a proportion of those days if work is conducted by an employee for less than one year. Certain periods of time, such as maternity leave and sick leave, are computed as period of services when calculating annual holidays. Hence, even if, as a result of these circumstances, no service has been provided for a single day during the year in which the right is generated. In this regard, the STJUE in Cases C-173/99 ( Bectu ) C-350/06 ( Schultz- Hoff ) and C-282/10 ( Maribel Dominguez ): The Working Time Directive must be interpreted as precluding Member States from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying a precondition for such entitlement which has the effect of preventing certain workers from benefiting from it ( BECTU, paragraph 52). Bearing in mind that:
- According to recital 6 in the preamble, Directive 2003/88 has taken account of the principles of the International Labour Organisation with regard to the organisation of working time.
- Article 5(4) of Convention No 132 of the International Labour Organisation of 24 June 1970 concerning Annual Holidays with Pay (Revised), ‘… absence from work for such
This criterion, however, has not been maintained by the TS - contrary to the criterion of the Audiencia Nacional - in its Judgment No. 257/2020 of 17 March 2020 (Rec. 193/2018) in relation to child birth permits, illness, accident... recognized in Spanish legislation. In his decision, the TS concludes that the dies a quo for the calculation of the leave does not have to be a working day. The CJEU, in relation to other rights of rest (weekends or holidays) and leaves, considers, in the judgment in Case C 588/18, FETICO and Others r, that Directive 2003/88 is not applicable to national rules providing for special leave on days when workers are required to work which do not allow those workers to claim that leave in so far as the needs and obligations met by that special leave arise during weekly rest periods or periods of paid annual leave. In other words: the ECJ support the overlap of weekly rest or annual holidays and these leaves. This judgment is not contradictory to the doctrine laid down by the CJEU itself, since it concerns leaves recognised by national legislation, improving the provisions of european legislation, so that the principle of non-accumulation does apply to the leaves recognised in european legislation. The Directive provides that workers are to be entitled to time off from work on grounds of force majeure for urgent family reasons in cases of sickness or accident making the immediate presence of the worker indispensable. However, it does not follows that the minimum rights laid down by the Directive can be regarded as comparable to a paid leave (paragraph 41). The STJUE notes that child birth leaves, etc., are intended solely to enable workers to take time off from work in order to meet certain specific needs or obligations that require their personal presence. Thus, these paid leaves, the CJEU notes, are inextricably linked to working time as such, and consequently, workers will not have recourse to such leave during weekly rest periods or periods of paid annual leave. Accordingly, that special leave cannot be regarded as comparable to sick leave. However, there is a limit to the enjoyment of annual leave which coincides with sick leave: the employee has the right to his/her annual once his/her sickness or disability has ended and provided that no more than eighteen months have elapsed from the end of the year in which they originated (art. 38 ET which assumes, improving it, the STJUE criterion in case C-214/2010).
- Are annual holidays a right or an obligation for the employee? The Constitutional Court determined that they are a right not an obligation. However, as the employment relationship is still in force during the period of annual holidays, employees cannot incur in unfair competition (STC 192/2003). Establishing annual holidays. Annual holidays are established by mutual agreement between the employer and the employee while observing the provisions provided for in collective agreements. The employee cannot go on holiday without the employer’s prior consent. On the other hand, if an employer wishes to impose the dates of
annual leave or refuses to consent to it, the employee may file a lawsuit before the courts:
- within twenty days since notification of the dates determined by the employer (if the latter has imposed the dates), and
- within two months before the date the employee wishes to go on holiday (if no dates have been determined).
