The Limits of Labour Inspection in Spain: Everything You Need to Know
Introduction: What is the Labour Inspectorate and what is its role?
The labour inspectorate plays a key role in the protection of labour rights and compliance in the labour field. The main objective of this institution is to ensure that both employers and workers comply with established labour laws and regulations.
The functions of the labour inspectorate are diverse and cover different areas. Firstly, they are responsible for conducting regular inspections of workplaces to verify compliance with regulations related to occupational safety and health. This involves ensuring that adequate conditions are provided for the performance of work, as well as preventing possible risks that may affect the physical and mental integrity of workers.
In addition, the labour inspectorate also ensures that fundamental labour rights are respected. This includes ensuring compliance with regulations related to minimum wages, overtime, mandatory breaks, paid holidays and other benefits established by law.
Another important function is to investigate complaints or grievances filed by workers or trade unions regarding possible labour violations. If non-compliances are detected, the inspectorate may impose sanctions or require adjustments to correct such irregularities.
The Labour Inspectorate may initiate its actions ex officio, on the basis of planned campaigns that affect certain sectors or companies with a certain volume of staff, for example; or because there is a complaint, in which the identification data of the complainant and the facts constituting the infringement must appear.
In this sense, anonymous complaints are not processed.
What Can and Cannot a Labour Inspector Do?
- The powers of the labour inspector include the power to enter any workplace without prior notice, request relevant information and documents, conduct interviews with employers and employees, inspect facilities, equipment and working conditions, among others.
The actions permitted by the labour inspector include the verification of compliance with labour regulations regarding working hours, minimum wages, social benefits, occupational health and safety, labour contracts and respect for the fundamental rights of workers.
What a labour inspector can do
Identification and documentation
Identification
The inspector can question or request the identification of all persons present in the workplace to, for example, verify that they are registered. He may also carry out the inspection visit alone or accompanied by the persons he deems necessary for his investigation (employees, workers’ representatives, experts, etc.) .
Examination of documentation
It is also empowered to examine at the workplace any documentation it deems appropriate for its checks: contracts, pay slips, work schedule, etc. , obtaining the corresponding copy (in general, it is not valid to demand the delivery of original documents ). Regarding the examination of the documentation:
- There are documents that do need to be in the workplace – the employees’ working day register, the risk prevention plan… -. If this information is not provided to you, it will be considered as hindering your work.
- However, the delivery of documents whose presence in the company is not compulsory, such as contracts, pay slips, contribution slips, etc., may be postponed until a later visit.
The inspector cannot open drawers, cupboards, etc. on his own, as he would be violating the principle of the inviolability of the home (which also affects certain company premises, as indicated above).
He can take photographs, videos, make measurements or take samples of materials, but only if the employer is notified.
What a labour inspector cannot do.
It is important to note that the labour inspector is limited in his or her actions in a labour inspection.
The labour inspector must respect the confidentiality of certain sensitive information obtained during his inspections. He cannot disclose personal or business data without a valid legal justification.
He/she is obliged to identify himself/herself
It is true that an inspector may appear at a workplace without prior notice, but he or she must comply with two obligations before starting to investigate or request information :
- The law obliges him/her to identify himself/herself with documents. Inspectors have a photo ID card that identifies them.
- They must also inform the employer or his representative of their presence.
Very important in the labour inspection:
The labour inspector can only fail to comply with these obligations to identify himself if he consider that this would be detrimental to the success of his duties. It is therefore valid for an inspector to visit a restaurant or a shop and count the number of employees before identifying himself (so that he can prove, for example, that there are ten employees working when, according to his data, only five are registered).
He cannot freely enter the home address
If the workplace coincides with the home of a natural person, they may not enter it without the express consent of the owner or, failing that, without judicial authorisation, since the home of natural persons enjoys constitutional protection .
The domicile of legal persons also enjoys such protection, but only with regard to the places where the usual management and administration is exercised, and the places where documents are kept (whether it is the tax domicile or a main or secondary headquarters).
Subjects covered by the labour inspectorate
The Inspectorate is competent to act in matters of the social order: labour relations (overtime or non-payment of wages), social security, risk prevention, work of foreigners. Therefore:
An inspector may not ask questions or request documentation on issues not related to matters within his competence. For example: on compliance with the obligation to withhold income tax, or on compliance with health or environmental regulations…
Nor can it check compliance with obligations derived from the employment contract that entail improvements with respect to the law or the collective agreement, since it is only classified as an offence to establish conditions that are inferior to those established by law or collective agreement.
Thus, if an employee has agreed with his or her employer on a variable remuneration that is not provided for in the collective agreement and both parties argue about the fulfilment of the objectives, the Inspectorate will not be able to decide on the matter. In this case, if the employee is dissatisfied with the company’s attitude, he/she will have to go to court.
In summary, the powers of the labour inspector give him the authority to carry out comprehensive inspections to ensure proper compliance with labour laws. However, there are also limitations on their actions to protect both the privacy and the legitimate rights of both employers and workers involved in each specific case.
The inspector may not enter the premises where the normal management and administration of the company is exercised and where documents are kept, except with the express consent of the owner.
Time limit on labour inspection
Duration of the labour inspection
The verification proceedings may not last more than nine months from the date of the inspector’s first visit (or, if applicable, from the appearance of the employer with the required documentation). If more than nine months have elapsed since the beginning, the proceedings are considered to have lapsed.
In some cases, the proceedings can be extended for up to nine months. For example: if the inspection is complex due to the geographical dispersion of the company.
Interruption of the labour inspection
Similarly, inspections cannot be interrupted for more than five months. If an inspection is initiated but more than five months have passed since the last visit, the proceedings are also considered to have expired.
If the above-mentioned limits are exceeded, the possibility of issuing an infringement report lapses. However, the Inspectorate may initiate proceedings again, for the same facts, and the verifications will be considered as background information.
However, in these cases, it is understood that the proceedings have not taken place, so the infringement will not have been interrupted.
What to do in a labour inspection?
Entry of the labour inspectorate
Companies are obliged to cooperate with the inspectorate. Therefore, it is advisable to allow the inspector to enter, to facilitate the identity of the persons who are in the workplace and to accompany him during the visit.
If a company does not cooperate with the Inspectorate, it will commit an offence of obstruction, which can be minor, serious or very serious . Thus, a delay in providing documents is a minor offence punishable by a fine of 60 to 625 euros, but preventing the inspector from entering is a very serious offence punishable by a minimum of 6,251 euros.
In practice
Remember the terms under which an inspection visit usually takes place:
- If the employer is present. If the employer is in the company, the correct thing to do is to allow the inspector to identify the persons present in the workplace, give them access to the premises and provide them with the documentation that must be in the workplace. But with regard to the rest of the documents (payslips, contribution slips, etc.), it is valid to claim that the consultant has them (so that the inspector will ask for them to be provided during a second visit).
- If the employer is not present. In this case, the inspector usually requires the presence of the business owner and waits for him/her. If he/she cannot be present, he/she carries out the visit accompanied by a representative of the workers or the manager.
In the latter case, instruct your workers to allow the identification of those present and to consent to a visual inspection of the premises. With regard to the documentation that the inspector may require, it is valid for them to claim that they do not have access to it – even that whose presence in the company is obligatory, as it may be kept in the office where the management of the company is exercised, which enjoys constitutional protection. In this case, the company cannot be penalised for non-cooperation.
Given that the inspector cannot open drawers or cupboards, or take measurements or photographs without notifying the employer, any evidence or document obtained in this way cannot be taken into account in the procedure, as it has been obtained in violation of the basic rights of the inspected party.
Contact details of the Provincial Inspectorate of Labour and Social Security in Alicante
In short, the Labour Inspectorate plays a crucial role in protecting and ensuring compliance in the labour field. Its main objective is to ensure that labour rights established by law are respected in order to guarantee decent and fair conditions for all workers.
