The registration of working hours, according to the Court of Justice of the EU, is ‘a system enabling the duration of time worked each day by each worker to be measured in order to ensure effective compliance with maximum weekly working time and minimum daily and weekly rest periods’, as required by the Working Time Directive.
Although the obligation to record working hours is not explicitly included in Directive 2003/88/EC, it is found in certain specific provisions of EU law relating to the transport sector, such as Article 9(b) of Directive 2002/15/EC of 11 March 2002 and paragraph 12 of the Annex to Council Directive 2014/112/EU of 19 December 2014. Both directives expressly set out a requirement to record the working time of workers covered by those provisions.
In a Spanish case in which the Trade Union Confederation of Workers’ Commissions (CCOO) criticised Deutsche Bank for not having set up a system for recording the hours worked each day by employees, the Court of Justice stressed that employers must set up a system to record the hours of work of their employees. The court affirmed
that in the absence of such a system, it is not possible to determine objectively and reliably either the number of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours, as overtime.
The court added:
In those circumstances, it appears to be excessively difficult, if not impossible in practice, for workers to ensure compliance with the rights conferred on them by Article 31(2) of the Charter [of Fundamental Rights of the EU] and by Directive 2003/88, with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for by that directive.
In addition, the Court states that such a system ‘enabling the duration of time worked each day by each worker to be measured falls within the general obligation, for Member States and employers, laid down in Article 4(1) and Article 6(1) of Directive 89/391, to provide the organisation and means necessary for the protection of the safety and health of workers’.
According to a 2022 Eurofound report on overtime, the basic requirement placed on employers in most countries is to record the working hours of employees and make the information available to the relevant authorities, either routinely or on request. This relates sometimes specifically to overtime work (in Bulgaria and Estonia) and sometimes to working time in general (Austria, Lithuania and Romania). While in some cases aggregate data only are required (Bulgaria), more frequently information must be registered on each employee concerned (Austria, Estonia, Greece, Lithuania and Romania). In the case of Greece, companies must report employees’ working hours directly through the electronic information system of the Ministry of Labour and Social Affairs. In turn, the labour inspectorate is responsible for monitoring working time and enforcing regulations on working time. Sanctions for non-compliance almost always take the form of financial penalties, with the amounts varying from a few hundred euros to tens of thousands of euros.
The ruling of the Court of Justice is expected to have a huge impact in Member States where the recording of working time is not compulsory. For instance, in Spain, the government anticipated the judgment by adopting Royal Decree-Law 8/2019. This legislation modified the Workers’ Statute, which obliged employers to record overtime worked by employees, but not their normal working hours. Three years later, this ruling had a major impact in Germany. The Federal Labour Court handed down a decision in which it interpreted German law in accordance with EU law, affirming that the employer is required to set up a system for recording hours worked by employees.
Overtime; working time; working time and collective agreements
Eurofound (2022), Recording of working hours, European Industrial Relations Dictionary, Dublin
https://www.eurofound.europa.eu/en/european-industrial-relations-dictionary/recording-working-hours