The entry into force of the legal regulations that require companies to carry out a rigorous time record of the provision of services by employees has as its main purpose, among others, to verify the daily working hours carried out by the workers in order to control that overtime is not carried out without being compensated.
Definition of overtime
Article 35.1 of the Workers' Statute establishes that "shallbe considered to be those hours of work that are carried out on top of the maximum duration of the ordinary working day…".
Therefore, we must begin with the concept of ordinary working hours, which may be established daily, weekly, or even annually. Any work performed that exceeds the ordinary working hours agreed upon with the employee will be considered overtime, which must be compensated or remunerated in accordance with legal provisions or collective bargaining agreements.
As a general rule, most collective bargaining agreements establish an annual working time, so the work schedule must be drawn up by distributing these annual working hours throughout the current year, deducting public holidays and vacations, and respecting weekly rest periods and breaks between shifts. In this regard, it should be noted that the new regulations on timekeeping also aim to verify that employees are working the hours stipulated in the collective bargaining agreement, without exceeding them, in which case they would be considered overtime.
Different forms of compensation for overtime
Article 35.1 of the Workers' Statute provides that "By means of a collective agreement or, failing that, an individual contract, an option will be chosen between paying overtime hours at the amount to be set, which in no case may be less than the value of the ordinary hour, or compensating them with equivalent periods of paid rest. In the absence of an agreement in this regard, it will be understood that overtime hours worked must be compensated by rest within four months of their completion."
Based on the aforementioned precept, it is clear that there is an option to compensate overtime hours with equivalent rest periods in the four months following their completion, or to pay them for the amount set by the collective agreement in the applicable salary tables.
Legal limit on working overtime
The number of overtime hours may not exceed eighty per year, as stipulated in Article 35.2 of the Workers' Statute. For the purposes of calculating overtime hours to avoid exceeding the legal limit, it should be noted that hours compensated as time off within four months of being worked are not included in the calculation of this limit.
Relating the issue of overtime again to the new regulations on timekeeping, it is clear that verification by the Public Administration, specifically by the Labor Inspectorate, will be very simple with regard to excess working hours, since if they detect an excess of working hours through the timekeeping system, without it being compensated in the following four months, they will most likely proceed to check the pay slips to verify that this excess of working hours has been duly paid.
Finally, we must mention that the workers' time records must be kept for 4 years and this is not a coincidence since it coincides with the period that the Labor Inspectorate has to retroactively apply the effects of contributions that have not been made or that have not been made properly, in the case at hand, overtime hours that have not been compensated in any of the possible ways provided for by law.
If you require our assistance to obtain more information or have any questions, please contact us via email at ambit@ambitassessor.com or at our offices.
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A graduate in Law from the University of Barcelona, she also completed a Master's degree specializing in Labor Law and Social Security at the Barcelona Bar Association. She began her professional career as an intern while studying and later joined the Navarro Law Firm as an employment lawyer, advising companies nationwide on labor law matters and representing them before the Labor Courts, the Labor Inspectorate, in conciliation proceedings, etc. In February 2017, she joined Àmbit Jurídic i Econòmic as a professional partner after extensive experience as an employment lawyer.
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