The National Court endorses discounting coffee and cigarettes of the day

The court rejects the claim of CC OO to annul the changes of conditions experienced in the Galp company by the implementation of the control of the hourly register

The Social Court of the National Court has supported companies to sign their workers when they take breaks to smoke or drink coffee or breakfast, in order to discount this time from the hours actually worked. Likewise, this court has endorsed, in the same ruling, two other explanatory issues regarding the registration of working hours related to work trips or prior authorization of overtime.

The support for these three issues is based on the part of the Audience in which, in the case on which it is pronounced – the implementation of the registration of working hours in Galp Energía España – the changes experienced by the employees of this company as a result of the new registration , do not involve a substantial change in the working conditions of employees. Therefore, the company can implement these changes of the new registry unilaterally if it does not reach an agreement with the legal representatives of the workers, without resorting to the negotiating procedure for the substantial modification of conditions.

The origin of this conflict is a lawsuit by Workers Commissions against the company Galp Energía España, considering that “on the occasion of the implementation of a system of registration of working hours, fraudulently and dispensing with the processing established in article 41.4 of the Statute of the workers, it has modified the existing working conditions to the detriment of the workers prior to the implementation of the hourly register ”.

For this reason, the union claimed that the National Court declared void three of the changes communicated by the company in an email sent to the staff on September 26, 2019, which detailed what would entail the implementation of the new system of control of the hourly register.

However, in a ruling of December 10, 2019, now issued by the General Council of the Judiciary (CGPJ), the court has given the reason to the Galp company, dismissing the claims of nullity of CC OO, considering that the resulting changes of the new registry are not a substantial modification of the working conditions set forth in article 41 of the Workers’ Statute.

Fundamentally, the Chamber argues that for the application of the registration to be considered a modification of working conditions and, therefore, its effects could be annulled, it should be able to prove “the existence of a previous working condition established in the employment contract, in a non-statutory collective agreement or unilateral decision of the employer of collective effects ”. In addition, it should also be possible to prove that the employer, taking advantage of the legal requirement to implement this registry, “tortitiously” alters the previous working conditions. And, according to the National Court, these assumptions do not occur.

According to the details of the court’s arguments, in the specific case of the control of coffee, smoking or breakfast breaks, the Hearing says that it has not been proven that before registration, the company will consider these guidelines as working time, since “There was no effective control and monitoring of the day developed by each worker.” The company only had “an access control, using lathes, which was only used for security purposes”.

Along with this, the ruling cites, in turn, two pronouncements of the Supreme Court, for which it could not be considered that the prior consideration of these breaks for coffee, breakfast or smoking had the status of acquired rights, nor could it be apply the principle of the most beneficial condition for the worker.

Therefore, the Hearing endorses the Galp company decision to require workers to sign when they leave to make these types of breaks and to specify, with a code, which one they are dealing with, since, as the company stated in your email to the template to explain the new control system, “these incidents will not be counted as an effective day”.

The court considers that Galp has the right not to compute overtime that has not been authorized

Likewise, CC OO also requested the nullity of the company’s refusal to count as an extension of the workday the time that workers traveling outside the locality of the work center spend returning home, once the day of work is completed. , 45 hours. But that was not stipulated before the time control and, therefore, the company’s refusal does not imply a change of conditions. And likewise, the court considers that Galp has the right, by the regulation of the Workers’ Statute, not to compute the extra hours that have not been previously authorized by the company.

For the Pérez-Llorca Labor Area partner, Daniel Cifuentes, the reading that can be made of this sentence is that the National Court wants to send a message: “Although in essence it only protects that it is not a substantial modification of conditions of work, justifying it and, above all, not criticizing it, could be validating the contents of the application of the new time register, ”explained this labor expert.

However, this sentence is appealable to the Supreme Court, which will be the one with the last word.

HOW INSPECTION APPROACHES
Recommendation. The technical criteria that Labor inspectors handle in verifying the obligation of companies to register their workers’ workday daily indicate that “the registration of interruptions or breaks between the start and the end of the daily workday will not be expressly required , which do not have the character of effective working time ”. However, the instruction states that “it would be convenient” for the employer to record this type of pause, because “otherwise it could be presumed” that effective working day “is all that elapses between the start and end time of the workday registered. ” Moreover, this guide insists that “it is the employer to whom the accreditation would correspond” that there have been breaks and all the hours recorded are not effective working time.
Other practices. The regulations allow, however, that companies agree with their workers how these types of breaks are computed. For example, the English Court agreed in June with the unions that only those hours of work longer than one hour would count as time not worked. This means that coffee breaks or smoking are part of the workday.