The snack break as an effective working time

The TS considers that the working time set for the sandwich does not count as effective working time, since the fact that in previous years it was computed as such does not constitute a more beneficial condition, as the company’s unequivocal will is not recorded, with that you can modify the annual work calendar unilaterally to adapt to the new annual hours of work, without having to resort to the procedure of substantial modification of working conditions.

The difference in positions between companies and the union when setting the annual calendar lies in the consideration or not as effective work of the 15 minutes for the sandwich in continuous work longer than 6 hours. While the company does not consider those 15 minutes as effective working time, the representation of the workers considers that 7.5 minutes are of effective work, while another 7.5 minutes are the responsibility of the worker as it was recognized in the previous years.

The contested judgment, partially revoking that of the instance, dismisses the claim that 7.5 minutes of the 15 minutes of daily rest for the sandwich be considered as effective work, as the simple tolerance on the part of the company that in the previous calendars Since the beginning of its activity 5 years ago, the recommendation provided in the collective agreement has been followed that 7.5 minutes of 15 minutes of rest for the sandwich are considered effective work, can not be considered a more beneficial condition, since This nature is only preached from that which is produced by the business will to grant the benefit above the legal or conventional regulatory requirements of the matter.

However, when this measure implies the increase in annual working days, the TSJ considers that it had to be processed as a substantial modification of working conditions, which is appealed by the company in cassation.

The company presents an appeal for the unification of doctrine, refusing to resort to this procedure since the fact that in the previous years it was considered 7.5 minutes of sandwich time as effective working time, has not created a condition substantial work.

The TS, based on the fact that the union representation has consented to the pronouncement of the TSJ rejects the existence of a more beneficial condition, considers that the company can decide unilaterally, that said rest is no longer considered as working time, which irremissibly entails that the The company must adapt the distribution of the annual working day to achieve the annual effective working hours.

Therefore, the mere adaptation of the annual working day should not be considered a substantial modification of working conditions by raising the working days.