Abstract – The publication of the Order DEF/1363/2016 of 28 July 2016, concerning the working time and the work schedule in duty stations of members of the armed forces has revived the controversy about working time in Spain. The Order leaves the decision about the working schedules, rest periods and compensation issues up to the discretion of the head of unit, who can, above all, decide whether a soldier is to be compensated for excessive working hours or not.

The new Order was drafted after the last meeting of a taskforce composed of the MoD and professional associations represented in the Council Personnel of the Armed Forces (COPERFAS).

After the publication of the draft, all associations rejected the text for the above mentioned reasons. According to ATME, the Order is a new setback to the rights of the military personnel in Spain.

The original text is available here. For more information please contact ATME.

Compensation for excessive hours of the military at the discretion of the Heads of the Units

Following the publication of the Order DEF/1363/2016 of 28 July 2016, concerning the working time and the habitual work schedule in the duty station of the members of the Armed Forces, it has replanted the controversy again.

     What does the order suppose? Undoubtedly, a new setback to the rights of the military as it reduces and cuts off rests; regulating working schedules according to decisions of the head of unit, so that, reappear in the Armed Forces a state of servitude, unbecoming of a modern Armed Forces appropriate of a democratic and rule law state. Rests and holidays of staff in missions, navigations, manoeuvres, etc., are at the discretion of the head of the unit without that, a priori, the staff that have to perform such activities, know in advance the rest time available.

     The draft of this normative, written after the last meeting of the worktable created for this purpose, composed of the MoD and professional associations represented in the Council Personnel of the Armed Forces (COPERFAS), was informed unfavourably by all of the associations. What started on the initiative of associations as a project to alleviate excessive hours performed by the personnel of the Armed Forces without receiving any remuneration as opposed to the rest of the public administrations and other state security corps, it has ended in a mere ambiguous rules, which still leaves to the discretion of the heads of the units if a military should or should not be compensated for excess hours which are continually forced to perform for alleged services needs.

     The use of the word “podrá -will be able to-” is still the most used in this new normative. ATME is still wondering which the meaning of this expression is and what its legal application, an indeterminate term that does not guarantee the rest after the working time or the compensation for the overtime to which every citizen of this country has the right if you exceed your working time. ATME has tried by any means that this legislation be clear and precise, collecting in it the fundamental rights that have the members of other state security corps, Guardia Civil and National Police, and like other officials Public administrations; but the MoD still reject completely define which are the rights of the military personnel, it is much more easier to leave everything to the discretion of one person and that this one decide what is just or not.

Article 11. Mandatory and additional rests. (1)

… / …
2. By the performance of such guards or activities with less than 24 hours of uninterrupted activity and that mean an increase in the working time or have been carried out on a weekend or holiday time, you can benefit from the extra rest as determined by the head of unit depending its duration and will be of less than one day of rest.

3. By conducting activities involving several days of absence from the place of destination, different than those determined in the second final provision, also you can benefit from additional rest as determined by the head of unit depending on the duration of such activities at the return.

… / …

Article 12. Prolongation of working time. (2)

     In the cases of service needs, whether operational or operation of the unit, occasionally prolonged habitual working time, the head of unit may grant the personnel concerned the rest time it deems necessary.

Second final provision. Manoeuvres, navigations, exercises and similar activities. (3)

     Chief of Staff of Defence and Chiefs of Staff of the Army, Navy and Air Force, in the scope of its capacities, will be able to establish criteria for determining the downtime periods that allow unit heads to grant other rests than regulated in this standard, due to the performance of those manoeuvres, navigations, exercises and similar activities.

     Thus it seems demonstrated that we are still second-class citizens, always the expectation of good or bad opinion of our heads, unable to reply. All this is discrimination not only towards other citizens but also among staff of the Armed Forces who have different schedules within units, different criteria when applying the rules and, of course, the end itself this creates what it has been planted; helplessness.

     The Association of Spanish Troops and Seamen (enlisted) “ATME” only claims which other officials; an application of fair and proportionate working schedules. Why the military and our families, that are the hardest harmed, have to suffer the prolonged working time, guards and 24 hours services in which only you have 8 hours rest, or 7 or 14 days manoeuvres without any compensation?

     The answer is always the same: “the operation of the units, service requirements and the permanent availability”. If this is this way, perhaps it’s time to consider whether the Armed Forces can take on tasks with the actual number of units of its structure, and with the current staff; or continue holding them at the expense of excessive hours to which soldiers are subjected.

https://www.atme.es/la-compensacion-exceso-horas-los-militares-expensa-los-jefes-unidad/ATME
Madrid, August 2016

(1)(2)(3) The translation of the articles and disposal of the law are not official and may not being a correct or literal translation