16 May 2019 | By Michael Thaidigsmann
Companies must record employees’ working hours, European Court of Justice rules
All companies in the EU are obliged to set up a system allowing them to record the daily working time of their employees. The European Court of Justice has ruled that EU member states are obliged to make such systems mandatory in order to enforce legal limits on working hours.
The case was brought before the Spanish high court (Audiencia Nacional) by the Spanish trades union federation CCOO. The court in Madrid then referred it to the ECJ for a preliminary ruling. The CCOO attacked the lack of such a mechanism at Deutsche Bank’s operation in Spain and argued without it, it was impossible to verify the bank’s compliance with working times regulations and with the obligation to provide union representatives information on overtime worked each month, a requirement under Spanish law.
In its suit, the union argued that the obligation to set up such a recording system was derived not only from national law, but also from the Charter of Fundamental Rights of the European Union and the EU Working Time Directive. Deutsche Bank contended that under Spanish law there was no such general obligation and that case-law showed that Spanish law required only that a record be kept of overtime hours at the end of each month. According to information provided by that court to the ECJ, more than 50 percent of extra hours worked in Spain are not recorded.
The European judges in Luxembourg now ruled that under European legislation and the Charter on Fundamental Rights, every worker was entitled to work only a limited number of hours and to have daily and weekly rest periods. Member states were required to ensure that workers actually benefit from the rights that are conferred on them. The court also found that the worker must be regarded as the weaker party in the employment relationship, and that it was therefore necessary to prevent the employer from being in a position to restrict his rights.
Without a system enabling the duration of time worked each day by each worker to be measured, it was not possible to determine objectively the number of hours worked and when that work was done, nor the number of overtime hours, and hence if compliance with EU regulations was ensured, the judges found.
The ECJ considered that national laws which did not make such an instrument mandatory could not guarantee the effectiveness of the rights conferred onto workers by the Fundamental Rights Charter and the Working Time Directive. Moreover, the judges held that the directive’s objective of ensuring better protection of the safety and health at the workplace could also not be assessed adequately without records on working time.
Consequently, all EU member states had to require employers to set up an “objective, reliable and accessible system” enabling the duration of time worked each day by each worker to be measured, the judges found.
The specific arrangements for implementing such a system, had to be established by the member states themselves, taking into account the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, e.g. their size.
The ECJ ruling could have potentially far-reaching consequences, as modern-day working hours are currently not clearly defined. In its ruling, the court did not specify whether or not work-related activities carried out outside the workplace would have to be recorded as well.
Obligations to record the work time vary from country to country. In Britain, employers have to keep “adequate” records to show that workers are not working in excess of 48 hours a week and that the rules concerning night work are complied with. However, UK law does not explicitly require employers to record data to show that daily and weekly rest periods are met.
While European trade unions praised the ECJ ruling, employers’ federations were sharply critical. The BDA association in Germany said: “As employers, we are against the general reintroduction of the punch clock in the 21st century.” CCOO General Secretary José María Martínez said the ECJ ruling provided his union with the “tools to tackle overtime fraud.”