In the recent decision of Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE Case C‑55/18 the European Court of Justice held that Member states must require employers to set up a measuring system to record daily working time for individual workers. Such a system would comply with the provisions of the EU Working Time Directive (2003/88/EC), according to which employers are under an obligation to arrange an “objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”. It is for Member States to decide the specifics of such a system, such as technical features and functionality.
The reasoning of the ECJ relies on Article 31(2) of the EU Charter of Fundamental Rights, which states that every worker has the right to enjoy a limit on maximum weekly working hours, to daily and weekly rest periods and to an annual period of paid leave. However, without the system mentioned above, the ECJ considers that it is impossible to determine the exact number of hours worked and the overtime worked.
Without having a system in place to measure working time, employers cannot ensure that workers’ rights under the European legislation are respected.
Under English law, regulation 9 of the Working Time Regulations 1998 (SI 1998/1833) requires employers to “keep records which are adequate to show whether the limits (48 hours on the average week and the protection for night workers) are being complied with in the case of each other worker employed by him /her in relation to whom they apply and; retain such records for two years from the date on which they were made”.
The obligation is to keep records that are adequate to show that the obligation to ensure that workers do not work more than 48 hours per week on average is complied with. But there is currently no obligation on employers to keep a record of all hours worked by each worker on a daily basis, or any rest periods, despite there being minimum rest periods entitlements in the directive. It is therefore likely that this system will have to be revised in light of the ECJ decision.
For shift workers the French Labour Code requires employers to keep records of their employees’ working time. Employers must provide all the necessary documents, which employee representatives can access, to ensure that the number of hours worked and resting periods comply with the French legislation.
More precisely, article D.3171-8 of the Labour Code requires that the following procedure to measure working hours is followed: ‘on a daily basis, recording by any means, the start and end times for each period of work or by accounting for the number of hours worked’ and ‘on a weekly basis, a summary by any means of the number of hours worked by each worker’.
To summarize, there is no obligation of any measurement of daily working hours for workers under French law, except in the case where the employees within a same company do not have the same working hours.
So far under German Law, only the working time exceeding the maximum daily working time (which is 8 hours) has to be recorded. Any work beyond eight hours must be appropriately documented and such records must be kept for at least two years according to section 16 of the German Working Act.
The governmental authorities for the supervision of enterprises (Gewerbeaufsichtsamt) have the right to inspect the records.
The ECJ decision mentioned above has a particular impact on German law because the defendant is a German Bank. As a result of the decision therefore, employers must record the details of all working hours for each employee.
Currently there is no requirement in Danish law to record employees’ working time, but since the ECJ’s decision, the unions are looking into incorporating something into their collective agreements. There are no legislative initiatives as of yet on this topic.
Under Italian law, for working time purposes, employers are obliged to keep a record in the employee register (‘libro unico del lavoro’), pursuant to the decree of 9 July 2008 (which also abolishes the requirement for a payroll register).
This book/record shows attendances and hours worked by employees – ordinary hours as well as overtime- and employees’ remuneration. The employer must keep that record for 5 years.
As time-recording systems are already in place under Italian law, there will be no need for further legislation following the above ECJ decision.
The ECJ decision shows that the court considers the worker to be the weaker party in the employment relationship, and that it is therefore necessary to prevent the employer from being in a position to impose on workers a restriction of their rights. By clarifying the extent of this obligation to record daily working hours, the court will lead employers to rethink human resources and the working environment. Setting up an electronic badge system or a computer software to record working time would be advisable, although it will be for Member States to decide the exact form that such monitoring will take.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP, June 2019