New time registration and the role of the Labor Inspection

The labor, compensation and benefits area of Pérez-Llorca organized at its Barcelona headquarters the session “Labor novelties and trends 2024. Special mention to the digitalization, interoperability and accessibility of the new time and attendance register”. The seminar was attended by Manel Hernàndez, Yolanda Valdeolivas and Marc París, partner, of counsel and lawyer of Pérez-Llorca, respectively; together with Alejandro López Jiménez, Labor and Social Security inspector of the Provincial Directorate of Barcelona.

Legislative trends and reduction of working hours

The conference was inaugurated by Manel Hernàndez, who opened the event by introducing the speakers and then provided the audience with an introduction to each of the topics to be explained. Yolanda Valdeolivas then began her speech by addressing recent legislative trends in various areas of labor law and Social Security, highlighting, in particular, three key points on the controversial issue of the reduction of working hours.

He referred to the latest incidents and the state of the issue at the social dialogue table with unions and employers, where a draft regulation has not yet been offered and where the Ministry has recently proposed the 375 Plan for SMEs and a not very concrete accompanying program; the more than likely application of the objective of reaching a 37.5-hour working week by 2025, without the intermediate step of 38.5 hours; and the position of the CEOE, which defends respecting the current validity of the collective bargaining agreements that regulate this matter, so as not to break the integrity of the conventional instrument or the balance inherent to this source.

Problems related to the termination of contracts due to disability

Valdeolivas also addressed the problems currently involved in the termination of employment contracts following a declaration of permanent disability, as a result of the ruling of the Court of Justice of the European Union dated January 18, 2024. According to this ruling, before terminating the contract, it is necessary for the employer to implement reasonable adjustments to the job of the disabled person, which leads to difficulties and interpretative doubts that the current proposed rule does not resolve. Hernàndez pointed out that there are already numerous dismissal claims in progress invoking this resolution, in which additional compensation is requested for violation of fundamental rights.
Impact of the European resolutions on dismissals and severance payments

Likewise, Valdeolivas highlighted the impact of the recent pronouncement of the European Committee of Social Rights on the adjustment of our compensation system to Community law in the event of unfair dismissal, although he pointed out that it is not certain that the Government will make effective modifications during this legislature, as it is a non-peaceful issue neither within the executive nor in the parliamentary seat.

Changes in pensions and occupational risk prevention

He also mentioned the Social Agreement on Pensions formally signed in September 2024 which, among others, introduces changes in early retirement and in the formulas for partial and active retirement, alluding also to the proposals to modify the Law on Occupational Risk Prevention. “These modifications seek to adapt the regulations to the challenges of digitalization, underlining the need to balance the worker’s right to disconnection with the company’s production requirements,” Valdeolivas concluded.

Analysis of key rulings by Marc París

Marc Paris presented a compilation of ten highly topical judgments, dedicating the final part of his speech to the explanation of a selection of the three most relevant ones. In the first of these, it is emphasized that the allowances paid by the employer are considered “remuneration” under Directive 2006/54, without there being any indirect discrimination on the grounds of sex in the case of those received by cabin crew and pilots. “It would only be considered indirect discrimination if the difference in pay applied to work of equal value and, in this case, the work of crew members and pilots differs in training and responsibility,” Paris explained.

In the second of these, Paris explained that the Court of Justice of the European Union has recently ruled that Directive 2008/104/EC, which regulates temporary work, applies to any entity that provides workers to a user company, regardless of whether they have specific recognition as a temporary employment agency according to the national legislation of each country.

Finally, he analyzed the recent ruling on worker cooperatives, highlighting that the latest pronouncements in this area underline the importance of their having their own specific infrastructure. This, he pointed out, is key to preserving this business model and thus preventing cooperatives from operating as mere intermediaries in subcontracting processes.

Nuances on per diems and permits

For his part, Hernàndez clarified that the first pronouncement is contradictory with respect to the national regulation of per diems, by assimilating them de facto to salaries. At the same time, he mentioned that the recognition of the extension, for single-parent families, of 10 additional weeks of leave for birth or adoption in the Basic Statute of the Public Employee, would have repercussions on the labor relations regulated in the Workers’ Statute, since there is no objective reason that would allow different situations in this case, which has already been confirmed by the Supreme Court in the social jurisdiction in a recent ruling.

Evolution of the time registration and digitalization

In the third part of the day, Alejandro López addressed the evolution of the working day register, pointing out the National Court Ruling of December 4, 2015, which made it mandatory for all hours worked and the Supreme Court Ruling of March 23, 2017, which suggested a reform to clarify Article 35.5 of the Workers’ Statute. Currently, the register is regulated in Article 34.9 of the Statute, with the obligation to note only the hours of entry and exit. López stressed that the absence of this register implies considering the entire working day as worked and stressed the importance of the new digital register complying with criteria of objectivity, reliability and accessibility. “The development of digital tools must take into account the case law of the Court of Justice of the European Union and the Supreme Court to ensure their effectiveness and legality,” said López.

Image from left to right: Yolanda Valdeolivas, Marc París, Manel Hernàndez and Alejandro López Jiménez.