The Supreme Court has handed down a sentence in which it endorses that a company forces workers to sign up every time they go out to smoke or drink coffee. The judges, as learned by elDiario.es, have rejected the appeal that the CCOO union filed against the decision of the Galp gas stations to force these outings to be included in the register of working hours at their offices in Madrid, understanding that at no time has proven that these breaks were part of their effective working time.
Manual or electronic, but mandatory: the registration keys of the working day that comes into force this Sunday
Further
The union took the company to court alleging several infractions related to the implementation of the working day record in 2019. The CCOO denounced both the obligation to clock in during breaks to smoke or drink coffee as well as the fact that work trips were counted as a working day normal and not the total time invested in the displacement, or that overtime is subject to the prior authorization of a superior and not to its effective completion.
The National Court rejected the union’s first appeal and now the Social Chamber of the Supreme Court confirms this refusal. The judges understand that it is not accredited that the breaks to smoke or drink coffee were part of the working day, therefore it being legal for Galp to force clocking in and out. “The break to smoke or coffee is not reflected in the factual account that it was effective working time, so it cannot be considered that the registration system, in this last point, has violated the precept that is invoked”, reasons the Supreme Court .
From this point of view, says the Supreme Court, this aspect of the registration of the working day cannot be declared irregular if it is not in writing that the break to smoke and drink coffee is part of the working day, even if the company were flexible in that regard. The same thing happens, for example, with trips and displacements: “Nor has it been taken for granted that this was the employment condition that workers enjoyed,” he reasons.
They are reasoning similar to those already made by the National Court on the margin of workers to go out to smoke and drink coffee without deducting from their work time. There was a control of lathes but it was only used for safety purposes, not to control the working day, and “it had been tolerated, due to a policy of business confidence by virtue of which each worker is responsible for developing the committed day, that the workers left the facilities to smoke or drink coffee” but without this implying that these interruptions were considered effective work “among other things, because there was no effective control and monitoring of the workday developed by each worker”, reasoned the Court.
In this case, the judges explain, it would have been necessary to prove that the company had implemented a record of working hours, fraudulently altering previous conditions, in this case taking coffee and cigarettes out of the working day, something that is not recorded that before It did form part of the conditions for Galp workers.
Regarding overtime, the Supreme Court recalls that the 2019 rule that introduced the mandatory registration of working hours was intended to fight against “the performance of illegal overtime for exceeding the maximum amount allowed, or its non-payment or compensation with rest”, for what “any mechanism that contributes to fulfilling this objective is an ideal means and in accordance with the provisions of the standard”.
