he legal interpretation of working time in Spain is worthy of some commentary following three recent judgements. In order of hierarchy, these are the Judgement of the Court of Justice of the European Unión of February 21, 2018 (Matzak case), the Judgement of the Spanish Supreme Court, the Labour Chamber of October 11, 2017 and the Judgment of the Spanish National Court, the Labour Chamber of October 27, 2017. Interestingly, the last two Judgements affect the same companies, Tabacalera y Attadis.
What do the three Judgments have in common?
All of them concern the legal interpretation of working time, that is, the legal concept and its practical application to specific cases.
In the case of the Judgement of the Court of Justice of the European Unión, the Court explains whether on-call service, in certain circumstances, is considered working time. The Judgement of the Supreme Court considers whether attending commercial events on Sundays is working time. Lastly, the Judgment of the National Court considers whether activities, such as a soccer league or a review presentation with clients, are working hours.
In all three of the pronouncements, the tribunals declared that the hours spent on on-call service, Sunday shifts and playing soccer with clients should be considered working hours or working time.
As a direct result of these declarations, there are important practical effects for companies. It means, for example, and most striking, the obligation to remunerate for these hours, grant compensatory rest, or even scheduling the next working day, not at the usual time, but 12 hours after the end of the company’s business events.
It should be noted that the starting situation lays in the regulation that establishes the definition of working time in Spain. Article 34.5 of the Workers’ Statute computes working time so that a worker has to be located both, at the beginning and the end of their working day, at their workplace. Community regulation is included in article 2 of Directive 2003/88 concerning certain aspects of the organisation of working time. It defines working time as any period during which the worker remains at the workplace, at the employer’s disposal and carrying out the employer’s activity or duties. Additionally, the Directive indicates that for a worker to be considered at the employer´s disposal, the worker should find themselves in a situation where they are legally obliged to obey the instructions of their employer and carry out activity for that employer.
What is important to extract from the three Judgments mentioned? From the analysis, we highlight five points:
First point
The national laws of the European Union cannot alter the definition of working time within the meaning of article 2 of Directive 2003/88. For example, Spanish law could not regulate a more restrictive concept than the concept devised by the Directive. On the other hand, it would permit normative provisions that establish the duration of working and rest time more favourable to workers.
Second point
Spanish law may establish that the remuneration of a worker during their working time cannot be the same as during their rest time, to the extent that it is valid for a worker to not be paid at all for rest time.
Third point
The concepts of working time and rest time are mutually exclusive. Therefore, on-call service that a worker realises for an employer should be considered either working time or rest time. If this activity is classified as working time, it affects neither the intensity nor performance of the work carried out by the worker.
In this sense, and in the current state, if on-call service requires physical presence, either in a workplace or in a place determined by the employer, and the worker must be available to provide services for the employer if needed, it is considered working time. On the other hand, a system of on-call service where a worker has to be permanently available, however, without the obligation to be present in a workplace, does not imply working time. That is because a worker, in these circumstances, can manage his time with fewer limitations and devote himself to his interests. In this case, only the time dedicated to the effective provision of services should be considered working time.
In the Matzak case, and according to the judgement of the Community tribunal, the conclusion that can be extracted is that the limitations imposed by an employer on on-call service (the obligation to remain physically present at home and appear in a workplace within eight minutes) makes it working time.
Fourth point
Companies that voluntarily have conventions, regular meetings, or training activities organized by the employer on Sundays, its workers have the right to have these hours considered working time. From the case analysed by the Supreme Court, it can also be extracted that the hours worked above the duration of an ordinary working day should be regarded as working time for employees with reduced working hours during such special events.
Fifth point
It is to be noted that the hours spent by office or sales workers, even if voluntarily, on presentations or sports competitions (such as soccer or golf) organized by an employer to invite clients, should be considered working time. As such, an employer should schedule the next working day twelve hours after the end of the activities related to the special event.
In conclusion, this article does not include all the information about what is considered working time in Spain. There exists extensive case law and judicial doctrine in our country, which classifies workers; activities as working time. These three Judgements are no more than a simple example of this. The social and economic reality, a thousand times faster than a regulation, will surely surprise us in the future.
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