The ruling, dated March 23 (rec.81/2016 (LAW 17182/2017)) thus estimates a Bankia appeal against the judgment of the National Court of December 4, 2015 (LAW 191407/2015), that it condemned the bank, following a demand from the unions, to establish a system for recording the effective daily working hours of its workforce. The high court does maintain, since it was not contested by Bankia, the part of the ruling of the National Court that determined that the company should proceed to transfer to the legal representation of the workers of the information on overtime performed in monthly computation .

The Supreme Court admits that “a legislative reform would be needed to clarify the obligation to keep a time register and provide the worker with proof of the performance of overtime,” but “that obligation does not exist for now and the Courts can not supply the legislator by imposing the company the establishment of a complicated system of hourly control, by means of a generic condemnation, which will force, necessarily, to negotiate with the unions the system to be implanted, because, it is not a matter, simply, to register the entry and exit, but the development of the effective day of work with the multiple variants that supposes the existence of different days, the work outside the work center and, in his case, the irregular distribution of the day throughout the year, when it is agreed “.

The Supreme rejects “carry out an extensive interpretation of art. 35-5 of the ET imposing obligations that limit a right as established in article 28-3 of the aforementioned legal text and the principle of freedom of enterprise that derives from article 38 of the Constitution (LAW 2500/1978) and has recognized our Constitutional Court as essential for the smooth running of the productive activity (S. 170/2013) “.

The sentence explains that “the lack of maintenance, or incorrect record keeping, is not typified by the rule as an infringement in a clear and strict manner, which requires a restrictive and non-exhaustive interpretation of a sanctioning rule such as that contained in the article 7 (LAW 2611/2000) -5 of RDL 5/2000, of August 4 (LAW 2611/2000), on Infractions and Sanctions in the Social Order, norm whose sanctioning nature prevents an extensive interpretation of art. 35-5 of the ET, since it is the principle of law that of the restrictive interpretation of the limiting norms of rights and sanctions. In addition, it is not defined as a lack of keeping the record that concerns us and not to inform workers about the hours held in special days or to fail to comply with merely formal or documentary obligations is only a slight fault, in the cases provided for in art. . 6, numbers 5 and 6 of the aforementioned Royal Legislative Decree “.

He adds that the given solution “does not leave the worker helpless when it comes to proving the performance of overtime, because at the end of the month the company will notify him of the number of overtime hours performed, or its non-completion, which will allow him to claim against That communication and when it comes to testing the overtime work will have in favor of Article 217 (LAW 58/2000) -6 of the LEC, a rule that does not allow presuming the performance of overtime when your registration is not kept, but that plays against who does not wear it when the worker proves that he did. “

The sentence has three individual votes, signed by 5 of the 13 judges who subscribe it, in favor of dismissing Bankia’s appeal and confirming the decision of the National Court.

Origin: diariolaley