An employee was working on company commercial tasks, Monday to Friday 8:30 to 20:30. Moreover, he had worked on Saturdays all year long from 6:00 until 13:00 pm. For some other employees, the company was compensating overtime with breaks. Collective agreement applicable to the company establishes work should be done between Monday and Friday. On top, the company does not record employees’ daily working time.
The worker files a claim in amount asking for the payment of worked Saturdays as overtime. The claim is estimated in first instance, since overtime is proven, and once it is proven, business failure of the obligation to register working day, as well. The company argues that no overtime is done, because although they exceed the weekly working hours limit, the annual is not exceeded at all and appeals to the HCJ.
The point to discuss is whether or not there had been overtime hours and, if so, if there was the obligation to register the time work day.
The HCJ states, applying the law of the Supreme Court, that overtime rises day by day because of longer working days than established, and, as a consequence, the obligation to record daily extra time worked. That means that there is no need to record working time if there is no overworked time each day.
In this case, although collective agreement bans it, workers provided services on Saturday, exceeding maximum weekly workdays agreed. This means that this time is considered extra hours and, therefore, there is an obligation to register the workday time. HCJ considers that overtime could be immediately classified as such on the same day they are worked, independently of the fact that, by means of break compensation, they do not produce any excess of annual working hours.
Therefore, if the company employees were working extra hours, it is mandatory to record the work hour’s day. As it was not recorded, there is a breach on the obligation to record that information. It is the company who has the obligation to demonstrate this overtime was not done (and the company was not able to demonstrate so) and, in addition, there are enough evidences which allows to count overtime worked. For all the explained, the HCJ dismissed the appeal and confirmed the sentence stated by the first instance court.