Irregular distribution of working time and hours bank: the 10 % of article 34.2 and how to record it

Some businesses do not have the same workload in March as in August, or on Monday as on Friday: campaigns, seasons, month-end closes, orders arriving all at once. For them Spain’s Workers’ Statute provides the irregular distribution of working time: the possibility of concentrating more hours in some periods and fewer in others without the extra hours being overtime, provided the agreed working time is respected over the year. It is a legal tool, little known in SMEs and badly used when it is known, because it requires notice, limits, compensation within a deadline and, above all, a record that shows the hours add up. This guide explains what article 34.2 allows, what collective agreements add with hours banks and how to manage it without ending up with disguised overtime.

What article 34.2 of the Statute says

Article 34.2 establishes that, by collective agreement or, failing that, by agreement between the company and the workers’ representatives, the irregular distribution of working time over the year may be established. And it adds the rule of interest to SMEs with no specific agreement: failing agreement, the company may distribute irregularly over the year 10 % of working time.

With three inseparable conditions:

1. Respect the minimum daily and weekly rest periods provided by law: twelve hours between working days and a day and a half of uninterrupted weekly rest, accumulable over periods of up to fourteen days, plus the agreement’s daily working-time limits.
2. Minimum notice of five days to the worker of the day and time of work resulting from the irregular distribution.
3. Compensation of the differences between the working time performed and the legal or agreed maximum: due as agreed in the collective or company agreement and, failing that, within twelve months of when they arise.

In other words: the company may ask a person on 40 hours to work 44 in a campaign week and 36 in a quieter one, without the four extra hours being overtime, if it gives five days’ notice, respects rest periods, does not exceed 10 % of their annual working time in moved hours and gives the difference back within twelve months.

What the 10 % is and how it is calculated

The 10 % refers to each worker’s annual working time. With 1,750 annual hours, the company may move up to 175 hours a year: distribute them differently from the ordinary pattern, not add them. If the worker ends the year with more hours than the agreed 1,750, those hours are overtime, with its 80-hour limit and its pay or compensation regime, as we explain in overtime in the SME.

For part-time contracts, irregular distribution requires that the possibility of distributing working time irregularly has been agreed in the contract, and uncompensated extra hours are treated as complementary hours, with their own limits.

What the agreement adds: hours banks

Many sector and company agreements develop article 34.2 with an hours bank: a balance per worker that the company may use at peaks and the worker recover in troughs, with its own rules replacing the legal ones:

• A percentage other than 10 %, higher or lower.
• Longer or shorter notice, and sometimes a requirement to notify the representatives.
• Daily and weekly limits on the resulting working time.
• Compensation periods other than twelve months, and rules for the balance outstanding at year end or at the end of the contract (payment as overtime, taking it on specific dates).
• Additional compensation: premiums per moved hour, recovery with a coefficient or full days of rest.
• Reasons justifying use of the bank and excluded groups.

Where there is an agreement, the agreement applies; the legal 10 % is the floor for those with nothing agreed.

The difference between irregular distribution and disguised overtime

It is the line the Labour Inspectorate looks at, and it is crossed in four cases:

• Without notice: extra hours requested the same day are not irregular distribution; they are overtime.
• Without compensation within the deadline: if after twelve months (or the agreement’s period) the hours have not been returned as rest, they are overtime and must be paid and counted towards the 80-hour limit.
• Exceeding the 10 % or the agreement’s percentage: the excess is overtime.
• Without a record: if the working-time record does not show the moved hours and their compensation, the Inspectorate does not accept the irregular distribution as proven and estimates unpaid overtime.

That is why irregular distribution without a working-time record that keeps the balance per person is a source of reports, not of flexibility. The penalties are those of article 7.5 of the LISOS, from €751 to €7,500, plus salary differences, as detailed in penalties for failing to comply with time tracking.

How to apply it in an SME, step by step

1. Read the agreement: if it regulates irregular distribution or an hours bank, its rules govern.
2. Document the policy: available percentage, notice, daily and weekly limits, how it is communicated, how it is compensated and within what period, and what happens to the balance at year end. If there is representation, agree it with them.
3. Calculate the 10 % per person on their annual working time, and less for anyone who has not been there the full year.
4. Give at least five days’ notice, in writing or via the app, stating the day and time of the changed working day.
5. Record each moved hour in the working-time record, marked as irregular distribution, and keep the balance per person: extra hours pending compensation and deadline.
6. Compensate within the deadline, preferably in full days or on the dates the worker requests, and record it.
7. Watch rest periods: twelve hours between working days and the weekly rest, with alerts when a roster breaks them.
8. Close the year: balances at zero or treated as the agreement says; whatever was not compensated is overtime.

How LapsoWork does it

The time tracking software records each person’s actual working time against their ordinary working time and shows accumulated deviations, so the irregular-distribution balance can be read in the report per employee; the Advanced plan’s shift module lets you plan rosters with flexible, rotating or block schedules and rest rules per agreement, publish them in advance from the app (the five days’ notice is recorded) and see weekly cover; and reports export in audited PDF and CSV to prove to the Inspectorate that moved hours were compensated on time. How to design rosters is covered in how to create a shift schedule.

Frequently asked questions

What is the irregular distribution of working time?

The possibility of spreading annual working time unevenly over the year, concentrating more hours in some periods and fewer in others, without the extra hours being overtime, provided the agreed working time is respected in the annual computation. It is regulated by article 34.2 of the Workers’ Statute and developed by collective agreements.

How much may the company distribute irregularly without agreement?

10 % of each worker’s annual working time, failing a collective or company agreement setting another percentage, respecting daily and weekly rest, with at least five days’ notice and compensating the differences within twelve months of when they arise.

How much notice must be given for irregular distribution of working time?

At least five days, unless the agreement sets another period. The worker must know the day and time of the resulting work that far in advance; without notice, the extra hours are overtime.

What is an hours bank?

The development many agreements make of irregular distribution: a balance of hours per worker that the company may use at peaks of work and the worker recover in periods of lower activity, with its own rules on percentage, notice, limits, compensation and treatment of the year-end balance. Where it exists, its rules replace the legal ones.

What happens to irregular-distribution hours that are not compensated?

They become overtime: they must be paid at least at the value of the ordinary hour or compensated as such, they count towards the annual 80-hour limit and, if they were not properly recorded, the Inspectorate estimates and penalises them.

Conclusion

Irregular distribution of working time absorbs peaks without overtime if its four conditions are met: within the 10 % or the agreement’s percentage, with five days’ notice, respecting rest periods and compensating within twelve months. The agreement’s hours bank refines it, and the working-time record with a balance per person is what separates it from disguised overtime. If your business is seasonal and you want to use this tool with the data in view, try LapsoWork free for 30 days.