The limit that matters is the average: 40 hours a week of actual work, measured over the whole year, with a maximum of nine hours a day. It does not mean every week must add up to 40; it means that when the year closes, the average cannot be higher. And your employer can only spread hours unevenly if it meets conditions you are entitled to insist on.
The cap is an annual average, not a fixed figure every week
Article 34.1 of the Workers Statute (Estatuto de los Trabajadores) sets the maximum ordinary working time at forty hours a week of actual work on average over the year. Your actual working time is whatever your convenio colectivo (collective agreement) or contract says; if your agreement says 38 hours, those are yours.
Three practical consequences:
- An agreement or contract can improve the limit, never exceed it.
- “Actual work” is not “time at the workplace”: breaks count as work only if your agreement or contract says so (art. 34.4).
- Anything beyond ordinary working time is overtime. It is covered in overtime: limit and pay.
The day has a nine-hour cap
Article 34.3 says ordinary hours of actual work cannot exceed nine a day. The exception is that a collective agreement, or an agreement between the company and worker representatives, sets another daily distribution, always respecting the rest between working days.
That rest is a minimum of twelve hours between the end of one working day and the start of the next. It is covered in mandatory rest: the 12 hours and the break, so here it is enough to remember that both limits apply at the same time.
Workers under eighteen have a cap of eight hours a day, including training, and if they work for several employers the hours are added together.
Your employer can shift 10% of your hours if it follows the rules
This is the part that confuses most people. Article 34.2 allows irregular distribution of working time over the year:
- By collective agreement or, failing that, by agreement between the company and worker representatives.
- Without any agreement, the company may spread irregularly ten per cent of your working time.
And in every case the distribution must meet two conditions:
- Respect the minimum daily and weekly rest set by law.
- At least five days’ notice of the day and time of work that results.
A last-minute message for the next day does not meet that rule. Keep it: it is the proof you need.
Example with numbers. Your contract is 40 hours a week and your annual working time is 1,800 hours (an illustrative figure).
| Item | Calculation | Result |
|---|---|---|
| Hours that can be moved without an agreement | 1,800 × 10% | 180 hours |
| Busy week | 5 days × 9 hours | 45 hours |
| Quiet week | 5 days × 7 hours | 35 hours |
| Average of the two weeks | (45 + 35) ÷ 2 | 40 hours |
The 45-hour week is lawful because no day exceeds nine hours, there are twelve hours’ rest between days and the average is balanced by the quiet week. If you are told on Friday that you start at 7:00 on Monday, the five days’ notice has not been given.
When the differences must be made up
Hours you have worked above or below the maximum are made up as agreed in the collective agreement or, if it says nothing, by agreement between the company and the representatives. If there is no agreement, differences arising from irregular distribution must be made up within twelve months of arising.
In practice: if in March you work 10 hours extra under the 10% rule, the company has until March of the following year to give them back as time off or reduced hours. It cannot leave them hanging indefinitely.
The fifteen-minute break and the work calendar
When the continuous working day is over six hours, there must be a break of at least fifteen minutes (art. 34.4). It counts as working time only if the agreement or contract says so. Working time is counted so that at the start and the end of the day you are at your workstation (art. 34.5), and the company must draw up the annual work calendar (calendario laboral) and display it somewhere visible (art. 34.6).
To prove your hours, the company must keep a daily working time record and hold it for four years. The details are in the working time record.
Why your case may be different
- Your collective agreement sets another distribution. It may allow more than nine hours a day or regulate the hours bank with a different percentage. Read it before arguing.
- You are under eighteen. The limits differ: eight hours a day.
- Your sector has special rules. The Government can set extensions or limits on working time and rest for specific sectors (art. 34.7). Those regulations are not in the Statute, so check whether they affect you.
- You ask for a schedule for family reasons. Article 34.8 gives you the right to request reasonable adjustments to duration and distribution if you have children up to twelve years old or care needs; the company must open a negotiation lasting fifteen days at most.
If the limit is not respected
- Write down your real hours and the notices you receive, with dates.
- Ask HR in writing for the make-up time or the reason for the change.
- If it does not answer, a union or an employment lawyer (abogado laboralista) can pursue it. The Labour Inspectorate (Inspección de Trabajo) can also act.
The labour infringements law (LISOS) treats breaching the legal or agreed limits on working time, rest and leave as a serious offence (art. 7.5), with fines of €751 to €7,500 depending on the grade (art. 40). What helps you is knowing the company has something to lose if it breaches the rules, and that you can tell it so in writing.
When planning your calendar, distinguish weekly rest from statutory holiday days in Spain.
This page is general information based on the consolidated text of the Workers Statute. If deadlines or money are at stake, talk to an employment lawyer or a union.