19 June 2019

Tightening of conditions of recording the employees' working time

The Court of Justice of the European Union has delivered a landmark judgment in Case C-55/18 Federación de Servicios de Comisiones Obreras v Deutsche Bank (the "Judgement") in relation to recording of employees' daily working time. On its basis, Member States must impose an obligation on employers to set up a system that allows them to measure the length of the daily working time of their employees, including overtime.

Milina Schifferdeckerová
Ladislav Šimko

Working time under the Slovak legislation

In the Slovak legislation, the regulation of working time and related terms is contained in the Act no. 311/2001 Coll. The Labor Code (the "Labor Code") which also transposes the European Parliament and Council Directive no. 2003/88/EC of 4 November 2003 concerning certain aspects of the organization of working time (the "Directive"). The Labor Code defines working time as the period in which an employee is available to the employer, performs work and duties in accordance with the employment agreement. The Labor Code considers a rest period as any time that is not working time.

With some exceptions, the employer is obliged to schedule the working time so that the employee has a minimum rest period of 12 consecutive hours within 24 hours between the end of the first and the beginning of the second shift. The employee's average weekly working time, including overtime, may not exceed 48 hours.

Recording of working time and sanctions

The obligation of employers to record working time, overtime, night work or on-call work arises directly from the Labor Code. In order to fulfill the obligation to record working time, the specific method of recording of the employer should be adequately transparent at least to the extent, that it provides information on when, to what extent or whether the employee worked the agreed working time at all. In this respect, we would like to add that the employer's obligation to record working time is not the same as the obligation to register work attendance.

If the employer does not comply with the above-mentioned obligation to record working time, the employer commits a violation of the law, for which the labor inspectorate may impose a fine. According to Slovak legislation, exceeding the time worked over the working time recorded in the employer’s records by more than 10% is considered as a serious violation of labor law regulations. The fine may amount to up to 200,000 euros, and the fine may be imposed up to 3 years from the date on which the employer has breached its obligations.

Judgement of the Court of Justice

In the main proceedings, the Spanish trade union (the "CCOO") brought a collective action before the Central Court of Spain against Deutsche Bank.

According to the facts of the case, Deutsche Bank did not introduce any system for recording the hours worked by its employees, which would enable it to control the fulfillment of the agreed working time and calculate any overtime worked. Deutsche Bank used only the (absences calendar) application, which allows only to record entries such as one day's absence from work (e.g. holidays or leave of absence). However, the application in question did not measure the length of working time worked by each employee or the overtime worked.

The aim of CCOO was to obtain a judgement regarding the existence of an obligation of Deutsche Bank to set up a system, which, records the agreed and the actual number of hours worked daily and would also comply with the obligation to provide the trade union representatives with information relating to monthly overtime.

In that regard, Deutsche Bank took the view that Spanish law does not provide for such a generally applicable obligation.

The Central Court of Spain decided to stay the proceedings and to refer questions to the Court of Justice for a preliminary ruling on, whether the legislation of a Member State is compatible with the EU law if it does not impose an obligation on employers to set up a system to measure the length of daily working time of each employee.

Following the assessment of factual circumstances, the Court of Justice has reached these conclusions in relation to individual rights of employees:

  • The right to a minimum rest period – If there is no system to measure daily working time, there is no guarantee that employees are fully guaranteed the observance of the right to limit the maximum amount of working time, as well as minimum rest periods, conferred to them by the Directive, since such observance is within the employer's sole discretion.

  • Proving a violation of employees' rights – A system to measure the length of daily working time worked by employees provides a particularly effective means of free access to objective and credible data relating to actually worked working time and therefore, by its nature, may facilitate the proving of violations of fundamental rights of employees, as well enable to monitor the effective observance of these rights by the courts and the authorities.

  • Member States obligation to ensure the necessary safeguard of employees' rights – Member States must impose an obligation on employers set up an objective, reliable and accessible system enabling the duration of time worked each day by each employee to be measured.

Further development of legislation

In the current wording, the Labor Code does not specify the way in which employers should keep records of working time. In the future, therefore, in the light of the conclusions of the Court's ruling, the rules on working time registration provided for in the Labor Code can be expected to undergo more extensive changes.

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