European Court of Justice – Employers to keep accurate records on working time

May 17, 2019

European Court of Justice – Employers to keep accurate records on working time

May 17, 2019

Radovan Grbović

Radovan Grbović

Partner

Kristina Pavlović

Kristina Pavlović

Associate

On 14 May 2019, the European Court of Justice has rendered judgement in proceedings initiated by Spanish Trade Union i.e. Federación de Servicios de Comisiones Obreras.  Namely, the Trade Union requested from Spanish affiliate of Deutsche Bank to set up a system monitoring the duration of time worked each day.

The case was brought before European Court of Justice, with the request to interpret directive governing labor relationship.

Standings of supreme court of the EU

In its judgement, the European Court of Justice firstly states that the employer has requirement to establish a system for recording the overtime hours worked by workers who have given their consent in that respect.  Furthermore, it is said that classification of hours as “overtime” presupposes that the amount of time worked by each employee concerned is known and therefore measured beforehand.  Hence, the requirement to record only overtime does not provide employees with an effective means of ensuring that the maximum weekly working time laid down by Directive 2003/88 — which includes overtime hours — is not exceeded and that the minimum daily and weekly rest periods defined under said Directive are observed in all circumstances.

Furthermore in the reasoning, the European Court of Justice states that, in any case, said requirement is not capable of compensating for the lack of a system which, as regards employees who have not consented to work overtime hours, could guarantee actual compliance with rules concerning, inter alia, maximum weekly working time.

Hence, it is not sufficient just to keep records on overtime, but also to provide accurate records on working time of the employees. This is due to fact that purpose of these measures is to ensure that minimum rest periods are observed and to prevent maximum weekly working time being exceeded so as to guarantee the full effectiveness of Directive 2003/88.

Finally, European Court of Justice has emphasized that the employee must be regarded as the weaker party in the employment relationship and that it is therefore necessary to prevent the employer from being in a position to impose a restriction of his rights on him.

Legal requirements imposed by labor regulations in Serbia

In Serbia, the obligation to keep daily records on overtime by an employer was stipulated under the latest amendments of the Labor Act (“Official Gazette”, no. 113/2017).  However, when it comes to the records of working hours, an employer in Serbia shall keep records on working time in the line with Act on keeping records in labor area. It is worth mentioning that said regulation dates back to 1996 and provides this specific obligation that was subject of the above – mentioned proceedings before highest court instance in EU.

Moreover, this obligation has been confirmed in practice of Serbian courts few times. For example, the Commercial Appellate Court in its ruling dated 3 February 2015 stated that the employer has legal obligation to keep records on working times.

Having in mind the above stated, the requirement to keep records on working time, imposed by said ruling of European Court of Justice to all EU member states, has been provided long time ago under Serbian labor law. Of course, it remains to be seen what will be the exact mechanism of implementing this obligation in practice among the member states.

This text is for informational purposes only and should not be considered legal advice. Should you require any additional information, feel free to contact us.

Contact:

Radovan Grbović , Partner
radovan.grbovic@sog.rs

Kristina Pavlović, Associate
kristina.pavlovic@sog.rs

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