On 14 May 2019, the Court of Justice of the European Union delivered a judgment ruling that employers may be ordered to introduce a system for recording employees’ actual daily working hours in order for employees to enforce their right to a maximum of 48 hours work each week and the right to daily and weekly rest periods.
The case concerned the fact that the Spanish branch of Deutsche Bank did not have any system for recording the daily working time of the employees. The system could only record absences, including holidays and illness.
Hence, employees were therefore unable to check whether their working hours exceeded the permitted limits, and the employees’ trade union representatives were not informed of any monthly overtime work of employees.
From the EU Directive on aspects of the organisation of working time, it appears that the Member States must take the necessary measures to ensure a rest period of at least 11 hours, a weekly day off, and that the average working time does not exceed 48 hours, including overtime.
In Spain, the law stipulated that the maximum working time was an average of 40 hours per week on an annual basis, with a maximum daily working time of 9 hours, plus annual overtime of 80 hours. In addition, there should be a minimum of 12 hours between the end of one working day and the beginning of the next. However, there was no requirement for employers to set up a system for recording the actual working time of each employee; there was the only requirement for a system recording overtime.
A Spanish workers’ union brought an action before a Spanish national court on whether there was any requirement to introduce a system for recording actual daily working time. The court referred the question to the CJEU for a preliminary ruling on the interpretation of Article 31 (2) of the Charter of Fundamental Rights of the European Union, and of several articles of the Directive on aspects of the organisation of working time and the Directive on the introduction of measures to improve the safety and health of workers at work.
The CJEU ruled that the Member States are obliged to ensure compliance with minimum rest periods and prevent any exceeding of maximum weekly working time under the Directive on aspects of the organisation of working time. Regardless that said Directive does not stipulate specific provisions on how to ensure that the rights deriving from the Directive are to be followed, Member States are obliged to order employers to introduce an objective, reliable and accessible system allowing the length of each employee’s daily working time to be measured.
The CJEU particularly took into consideration the balance of power between the parties, where the employee, as the weaker party, could be reluctant to assert his rights against an employer fearing negative consequences from the employer, which is why the CJEU ruled that the Member States should be obliged to introduce the requirement.
The CJEU judgement is very comprehensive, and it should be expected that companies will be required to ensure that employees’ daily working hours can be recorded. It should be expected that companies may freely choose whether to record working time through computer programs, paper registers, key pieces or other means of monitoring.
