Member States must require employers to set up a system enabling the duration of daily working time to be measured

Europe

The Spanish trade union, Federación de Servicios de Comisiones Obreras (CCOO), brought an
action before the Audiencia Nacional (National High Court, Spain), seeking a judgment declaring
Deutsche Bank SAE to be under an obligation to set up a system for recording the time worked
each day by its members of staff. The union considered that such a system would make it possible
to verify compliance with the stipulated working times and the obligation, laid down in national law,
to provide union representatives with information on overtime worked each month. According to
CCOO, the obligation to set up such a recording system is derived not only from national law but
also from the Charter of Fundamental Rights of the European Union (‘the Charter’) and the
Working Time Directive.

Deutsche Bank contends that it follows from the case-law of the Tribunal
Supremo (Supreme Court, Spain) that Spanish law does not lay down such an obligation of
general application. It argues that that case-law shows that Spanish law requires only, except
where there is an agreement to the contrary, that a record be kept of overtime hours worked by
workers and the communication, at the end of each month, to workers and their representatives of
the number of hours overtime thus worked.

The Audiencia Nacional had doubts as to whether the interpretation of Spanish law by the Tribunal
Supremo complies with EU law and referred questions on that matter to the Court of Justice.
According to information provided by that court to the Court of Justice, 53.7% of overtime hours
worked in Spain are not recorded. In addition, the Spanish Minister for Employment and Social
Security considers that it is necessary, in order to determine whether overtime has been worked, to
know precisely the number of normal hours worked. The Audiencia Nacional notes that the
interpretation of Spanish law given by the Tribunal Supremo in practice, first, deprives workers of
an item of evidence essential for demonstrating that they have worked in excess of maximum
working time limits and, second, deprives their representatives of the necessary means for
verifying whether the applicable rules on the matter were complied with. Consequently, according
to that court, Spanish law is not able to ensure the effective compliance with the obligations laid
down by the Working Time Directive or the Directive on the health and safety of workers at work.

By today’s judgment, the Court declares that those directives, read in the light of the Charter,
preclude a national law that, according to the interpretation given to it in national case-law,
does not require employers to set up a system enabling the duration of time worked each
day by each worker to be measured.

The Court notes, first of all, 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, which is enshrined
in the Charter and given specific detail in the Working Time Directive. Member States are required
to ensure that workers actually benefit from the rights that are conferred on them, without the
specific arrangements chosen to implement the directive being liable to render those rights
meaningless. The Court recalls that the worker must be regarded as the weaker party in the
employment relationship, such that it is necessary to prevent the employer from being in a position
to impose a restriction of his rights on him.

The Court holds 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, objectively and reliably, either the
number of hours worked and when that work was done, or the number of hours of overtime
worked, which makes it excessively difficult, if not impossible in practice, for workers to ensure that
their rights are complied with.

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. The Court considers
therefore that a national law which does not provide for an obligation to have recourse to an
instrument that enables that determination does not guarantee the effectiveness of the rights
conferred by the Charter and the Working Time Directive, since it deprives both employers and
workers of the possibility of verifying whether those rights are complied with. Such a law could also
compromise the directive’s objective of ensuring better protection of the safety and health of
workers, which is the case irrespective of the duration of the maximum weekly working time laid
down in national law. By contrast, a system enabling the time worked by workers each day to be
measured offers those workers a particularly effective means of easily accessing objective and
reliable data as regards the duration of time actually worked, which facilitates both the proof by
those workers of a breach of their rights and also the verification by the competent authorities and
national courts of the actual observance of those rights.
Consequently, in order to ensure the effectiveness of the rights provided for in the Working
Time Directive and the Charter, the 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 to define the specific arrangements for
implementing such a system, in particular the form that it must take, having regard, as necessary,
to the particular characteristics of each sector of activity concerned, or the specific characteristics
of certain undertakings concerning, inter alia, their size.

Source: https://curia.europa.eu

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