2023-10-01 16:36:16
The number of overtime hours per week has barely changed since 2019, although unpaid overtime has fallen by more than 10%, all in a context with several rulings that have ruled that the company must demonstrate whether or not there was excess working hours. when a worker complains. According to the Active Population Survey (EPA) for the second quarter of this year, in Spain 6.03 million overtime hours were worked per week (0.19% more than in 2019), of which 3.45 million They were remunerated, 11.08% more than in 2019 and the historical maximum in a second quarter. On the contrary, unpaid overtime hours decreased by 11.43% since 2019, to 2.58 million hours per week, the historical minimum in a second quarter.
The comparison with 2019 is explained by it being the last year not influenced by the pandemic, which triggered overtime hours, especially unpaid hours, which reached their all-time high in the second quarter of 2020, when they climbed to 3.42 million. In this way, unpaid overtime hours have decreased by almost 25% since the second quarter of 2020. In that second quarter in the midst of the pandemic, 52.57% of overtime hours were not paid, while in the same period This year the proportion decreased to 42.77%.
The drop in unpaid overtime coincides with a series of rulings that, according to experts from the Garrigues Labor Department consulted by EFE, “convey to the company the need for it to prove that all or part of the work has not been carried out.” of the overtime hours claimed or that have not been compensated in breaks”. A preliminary test is enough
A ruling from the Superior Court of Justice (TSJ) of the Balearic Islands from May 2023 recognizes the right of a waiter to charge overtime because the restaurant had not implemented mandatory working hours since 2019. When the waiter was fired in 2021, he claimed that, Along with the settlement, he was paid overtime, a claim that was denied in the first instance despite the fact that the worker stated that he went to work at 1:00 p.m. and finished his day at two in the morning. However, and in the absence of a time record, the plaintiff provided the statement of the local cook, who confirmed that the waiter was still working at 11:00 p.m., when his shift ended.
It was the TSJ of the Balearic Islands that, after appealing the first ruling, agreed with the worker by estimating that “non-compliance with the obligation to record working hours, established precisely, among other reasons, to control and accredit the possible performance of overtime , determines that the presumption of its realization must be established if evidence is provided in that sense.”
In June of this year, the TSJ of Catalonia sentenced a company to pay all the hours claimed by a worker who had claimed said hours because the company did not provide evidence to prove the hours worked by the plaintiff through the workday record. As the magistrates understand, the burden of proof cannot fall on the plaintiff, but rather on the person who fails to comply with the legal obligation to keep a record. “It was up to the employer to provide the proceedings with the daily record of the plaintiff’s workday in order to prove the completion of the overtime hours,” the ruling reads.
This is why “since the overtime hours postulated in the lawsuit were uncontroversial,” the judges upheld the appeal, agreeing with the worker and condemning the company to pay more than 15,000 euros, in addition to interest for late payment. “The company is responsible for ensuring that workers comply with the time record,” Garrigues Labor Department advisor Ismael Viejo clarifies to Efe, adding that the company can make reminders and even sanction those employees who do not use, or do not do it correctly, the tools for recording the day.
According to Viejo, depending on the severity, recurrence and the applicable collective agreement, these sanctions “could reach, in their maximum degree, the dismissal of the employee.”
In the event of claims such as those set out above, and in the event that the company cannot prove a time record, Garrigues’ lawyer recommends that companies have “alternative” evidence and means of proof – such as emails, call logs or surveillance cameras. – that allow proof of “the real and effective time dedicated by the worker.” Likewise, Viejo points out the importance of having a company policy that regulates working time and includes issues such as “the treatment of breaks during the working day or the need to have authorization to work overtime.”
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