Problems relating to the (lack of) working hours records: Reflections about the controversial judicial criteria

Abstract

The recent judgement 246/2017, of March 23rd, of Supreme Court Labour Chamber has reversed the National Court judgement of December 4th 2015 which imposed all companies the need of recording working hours as a previous and indispensable step for counting overtime. This judgement has also entailed that the administrative circular and campaigns of the Labour and Social Security Inspectorate for controlling working hours have left largely without a subject matter. In this article it is described the evolution from the origin of current article 35 of the Labour Act and its application and interpretation until the delivery of the above mentioned judgment. The following is a contrasted analysis of different aspects of the judgment and the dissenting opinion of several judges of the Supreme Court about the literal reading of the specific legal rule, the analysis of precedent case law, the European Union law on working time and the right to privacy in the treatment of personal data. The article concludes with lege ferenda proposals about the unavoidable amendment of the current labour legislation on working hours not only due to the convenience of clarifying the current legal rule but also the need of providing a legal cover to working hours record according to the European Regulation 2016/679 pursuant to the Supreme Court judgement. The legal amendment could affect not only the Labour Act but also the Labour Prevention Hazards Act, the Act 45/1999 on posting of workers in the EU/EEA and the Act of Administrative Infringements and Fines in the Social Order.