On 14 May 2019, the European Court of Justice (ECJ) issued a ruling in the case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE
with significant implications for all companies. Member States will have to require employers to set up an objective, reliable and accessible system to measure the daily working time of each employee.
Already, concerns are being raised that the widely practised trust-based working time will be abolished and/or that this heralds the end of working time flexibility. In view of the increasingly agile working world, the decision seems at first glance to be a step backwards. Is there a threat of a return to the previous systems of time clocks?
A Spanish trade union, CCOO, sued Deutsche Bank for setting up a working time recording system. Under Spanish law, the employer is not obliged to record time in general, but only "overtime". However, in practice, this regulation is often not effective.
The ECJ followed the Advocate-General and declared the Spanish regulation contrary to European law. In particular, it saw a violation of the Charter of Fundamental Rights, which grants every employee the right to limit maximum working hours.
A system for recording working time was found to be necessary because it was the only way the number of hours worked and overtime hours could be reliably and objectively measured. Without such a system, the employee would also not be able to assert his rights, for example to overtime pay.
The legal situation in Germany is comparable: so far, only the working time exceeding the maximum daily working time of eight hours has to be recorded. Contrary to widespread misconceptions, this obligation applies to all working time models, including trust-based working hours, and to most employees. It should be noted, however, that local authorities have sometimes demanded a minute-by-minute working time record even before this ECJ ruling.
The decision has far-reaching consequences. It is very likely that the working time documentation regulation of German working time law violates European law and thus becomes inapplicable – similar to German vacation law.
Company practice must be adapted if working time is insufficiently documented. Works councils are likely to insist on the increased documentation requirements. It is still possible that employees involved in working overtime may be able to do so and claim associated overtime pay in a simplified manner in the absence of a working time recording system.
The European Court of Justice also expressly speaks of a need for companies to facilitate the production of evidence in the enforcement of employees' rights. Against this background, the following should be kept in mind:
One preliminary conclusion can be drawn: we will not be returning to the time clock system of the past. Documentation obligations existed before the ruling of the ECJ. However, companies would be well advised to consider the effects of the decision now, in particular the introduction of a working time compliance system.