EU employers must now keep detailed records of their employees’ working hours, following a ruling delivered on 14 May 2019 by the Court of Justice of the European Union (CJEU). National lawmakers face the challenge of ensuring compliance across diverse industries and varying local working practices.
The CJEU ruling requires each employer "to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured". To ensure that "the fundamental right of every worker to a limitation of maximum working hours and to daily and weekly rest periods" is respected, national lawmakers now have the task of ensuring that employers set up a timekeeping system that meets the CJEU’s requirements.
How will this decision impact the Dutch landscape?
The Working Hours Act stipulates the maximum working hours that can be worked by employees aged 18 and older, but there are some noteworthy exceptions to this rule. Employees who earn more than three times the statutory minimum wage are exempted, as are professional athletes, scientific researchers, medical specialists and a number of other listed roles and functions. The Working Hours Act may also apply to volunteers and self-employed persons. Beside excluded roles, specific rules apply in some industries and collective bargaining agreements set out the rules for some sectors.
Under Dutch law, employers are already obliged to register the hours worked of those employees who fall under the scope of the Working Hours Act. There are no statutory requirements, provided that the system allows the employer and the employee to determine the validity of the registration of hours worked. The registration process is also meant to facilitate inspection to validate the employer’s compliance with the Working Hours Act.
However, the obligation to make a registration does not mean that all employers are fully compliant. The CJEU decision has therefore been welcomed by trade union representatives. To ensure that employees are protected against working too many hours, a transparent and accessible registration process can be helpful. A key question is whether it is possible to register all hours worked accurately in a working culture where many employees have flexible ways of working from different locations. Technology can play an important and useful role in registering hours worked, and employers who opt for this solution should bear in mind the possible limitations due to the GDPR (in Dutch AVG).
Each employer looking to implement a system to track and register hours worked must check whether the system requires consent from its works council. Consent is required if the registration system also registers attendance, behaviour and performance, which in our view is likely to be the case.
See this the Law-Now article for the impact of the CJEU ruling in Germany, Spain, Poland, Italy, France and the United Kingdom.