Will it soon be required to record the working time of all employees?

Author: Laurence Philippe
Date:

On 14 May, the Court of Justice of the European Union passed a judgment on working time. This could have serious consequences for European employers.

In this judgement, the Court concludes that Member States must require employers to use a system for recording the daily working time. Does a time clock registration system will become mandatory?

Question

Following an appeal by a Spanish trade union, the Audiencia Nacional (Central Court) has asked the Court of Justice whether European legislation requires Member States to oblige companies to introduce a system for recording the daily working time.

European legislation provides for a maximum daily and weekly working time and a minimum rest period, but not the way in which the working time is to be measured and these limits are to be monitored.

The judgement

According to the interpretation of the Court of Justice, "Member States are required to oblige employers to put in place an objective, reliable and accessible system to measure the duration of the daily working time of each employee".

However, the Court also points out that, given the appreciation margin they have, the Member States 'may determine the practical arrangements for the application of such a system, in particular the form in which it is to be applied, taking into account, where appropriate, the specific characteristics specific to each sector of activity concerned and even the specific characteristics of certain companies, in particular their size'.

Remember what?

This interpretation by the Court of Justice highlights an obligation that is not currently explicitly included in European legislation: the measurement and recording of working time and, consequently, of overtime and rest periods

However, the obligation that the Court abolishes does not lie primarily with employers. It is up to each Member State to set up such a system and to determine the practical details of such a system. The Court leaves open the possibility of adapting that obligation to the specific characteristics of the sectors and companies, such as their size.

Re-entry of the time clock?

Currently, in Belgium, there is no general obligation to record daily working time. Will a time clock system be installed in all companies?

A system for recording daily working time should not necessarily take the form of a time clock or an electronic time registration system.

Belgian legislation already provides for a number of measures that enable the social inspectors to determine the working hours of employees.

For certain specific regulations where work schedules are more irregular, the legislator obliges employers to introduce a time registration system: flexitime work schedules, flexi-jobs, part-time work etc.

Also overtime can only be worked within a very strict framework, so that the social inspectorate can check compliance with the relevant legislation.

It should also be added that for full-time employees, all work schedules applied in the company must be included in the work regulations, even if the recording of working time is not mandatory.

Our national courts will now have to take the judgement of the Court of Justice into consideration when interpreting the Belgian provisions. The future will show what impact in Belgium this judgement will have on labour law. Kris Peeters, Minister of Employment, has stated, in reaction to the ruling, that oblige employers to install a time clock system is going a step too far.

Source: Court of Justice of the European Union, 14 May 2019, C-55/18.

Press release of Kris Peeters, “Europees Hof stelt duidelijk arbeidstijd van werknemer moet geregistreerd worden”.