Measuring working time is obligatory

Member states must oblige employers to set up a system that measures the duration of their employees’ daily working time, the Court of Justice of the European Union (CJEU) recently affirmed.

The EU’s Working Time Directive sets out minimum safety and health requirements for the organisation of the working time of employees. These cover minimum periods of daily and weekly rest, annual leave, breaks and maximum weekly working time as well as aspects of night and shift work.

It particularly obliges member states to ensure that their national laws make provision for a maximum average working week of 48 hours over a seven-day period, including overtime, though national authorities are free to use different reference periods for calculating such maximum weekly working time.

The facts of this case were briefly as follows: A Spanish trade union brought an action before the Spanish courts seeking a ruling to the effect that Deutsche Bank SAE were under an obligation to set up a system for recording the time worked each day by its employees. The union observ­ed that such a system would make it possible to verify compliance with the legal working time and the obligation, laid down in Spanish law, to provide union representatives with information on overtime worked each month. According to statistics presented to the court, 53.7 per cent of overtime hours work­ed in Spain are not recorded. 

In order to determine whether overtime has been worked, it was deemed essential to know the number of normal hours worked by each employee. The union alleged that the obligation to set up such a recording system arises not only from Spanish law itself but also from the Charter of Fundamental Rights of the European Union and the EU’s Working Time Directive. 

The defendant rebutted that, in accordance with the case-law of the Spanish Supreme Court, Spanish law does not lay down such an obligation of general application. It argued that case-law interpreted national provisions as requiring only, other than where there is an agreement to the contrary, that a record be kept of overtime hours worked and the communication, at the end of each month, to workers and their representatives of the number of hours overtime worked. 

The national court considering the case observed that such an interpretation deprives workers of essential evidence to prove that they have worked in excess of maximum working time limits. It also deprived employees’ representatives of the necessary means to verify whether the national applicable rules on the matter were being complied with. The court thus decided to file a preliminary reference before the CJEU requesting guidance as to whether the interpretation of Spanish law by the Spanish Supreme Court complies with EU law on the matter. 

The CJEU highlighted the importance of the fundamental right of every worker to a limitation on the maximum number of working hours and to daily and weekly rest periods as enshrined in EU law. 

This judgment certainly serves as food for thought for the national authorities

The Court noted that EU law obliges member states to ensure that workers actually benefit from the rights that are conferred on them and national measures chosen to transpose EU law must not render such rights meaningless. The em­ployee must be considered as the weaker party in an employment relationship and it was therefore important to prevent the em­ployer from being in a position to impose a restriction of the employee’s rights, the Court went on to observe. The CJEU maintained that, in the absence of a system enabling the duration of time worked each day by each worker to be measured, it is not possible to determine the number of hours worked or when that work was done, nor the number of hours of overtime worked. 

The objective and reliable determination of the number of hours worked each day and each week is essential in order to establish whether the maximum weekly working time – including overtime – and minimum daily and weekly rest periods have been complied with. Such a system offers workers an effective means of ensuring that their rights are being safeguarded. 

The CJEU hence concluded that a national law that does not make provision for an em­ployer’s obligation to record such facts, does not guarantee the effectiveness of the rights conferred by EU law and could compromise the EU’s objective of ensuring the protection of the safety and health of workers.

Hence, member states must 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. It is for the member states themselves to define the specific arrangements for implementing such a system, in particular the form that it must take, having regard, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size, the Court affirmed.

The EU’s Working Time Directive has been transposed into Maltese law by the Organisation of Working Time Regulations, which make provision for the general rule that the average working time for each seven-day period of a worker, including overtime, shall not exceed 48 hours. The same regulations also make provision for a general obligation on behalf of the em­ployer to ensure that the maximum working time limit is complied with, in the interests of the health and safety of the workers.

Whether such a general provision is sufficiently in line with this ruling of the CJEU is highly doubtful and this judgment certainly serves as food for thought for the national authorities and possibly for the judiciary in ensuring full compliance with EU law on the matter.

Mariosa Vella Cardona, M’Jur, LL.D., is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law. She is also a visiting examiner at the University of Malta.

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