When?
The now much talked about bill on employers’ obligation to register working time is a significant amendment to the Danish Working Time Act and will be of significant importance to the country’s employers. The change means that employers face the prospect of an administrative and costly task when they have to introduce a time registration system by 1 July 2024 at the latest.
Why?
The bill is a consequence of a ruling from May 2019 by a court of justice of the EU against Deutsche Bank, which stated that member states must impose a registration obligation on employers. This is groundbreaking in Danish law, as there is currently no obligation to register working time in Danish law (with the exception of an obligation to register in an inspection book any breaches of the regulations in respect of driving hours and rest hours). The purpose is to ensure that the rules of the Working Time Directive on rest periods and maximum weekly working time is respected.
How?
Employers must implement an unbiased, reliable and accessible system for registering working time that allows for measuring each employee’s daily working time. The employee must be able to access the information themselves, and the employer must store the information for 5 years. The bill provides for freedom of method in relation to how the individual employers choose to organise the system for registering working time.
Who?
In general, the bill applies to all employees, but of course there are also exceptions.
A derogation is introduced for so-called “self-organisers”. The exception applies if, due to specific features of the work performed, the length of the working time cannot be measured or determined in advance, or where the employee can determine the working time themselves, in those cases where employees can make independent decisions or have managerial functions.
At present, the definition of “self-organiser” seems a bit unclear – and it is uncertain whether the law will determine it further, or whether it will remain ambiguous and up to court interpretation. In the comments for the bill, the stage is set for a narrow interpretation. Only senior managers or experienced academics in an employment relationship are expected to be covered by this provision – due to their considerable freedom in relation to working time. The exception will not apply to employees whose working time is partly measured or determined in advance or partly determined by the employees themselves.
It is important to note that it must be stated in the employment contract if an employee is a self-organiser and is thus exempt from the registration obligation, including the rules on daily rest periods, weekly rest periods and maximum weekly working time.
Finally, it should be noted that the bill also introduces an exception to the rule that an employee may not work more than 48 hours on average per week calculated over a period of four months (the “48-hour rule”). The exception will mean that employees who perform either critical functions and are covered by provisions of a collective agreement or are on call in accordance with a local workforce agreement will be exempt in the future. The deviation from the 48-hour rule means that the working time can be extended to an average of 60 hours per week over a reference period of four months. The reference period may be further extended in the relevant collective agreement or local agreement. The parties to the collective agreement may also agree – with consent from the employees – that the average working time may exceed 60 hours on average per week, if the other conditions for applying the derogation are met.
Our advice
When implementing the new rules, employers must of course keep GDPR in mind. Depending on how the employer has currently organized the working time system, the clear starting point will be that the employer must inform all employees prior to registering and updating the personnel and privacy policy. The penalties for violation have not yet been clarified, but it is expected to be compensation under the rules of the Danish Working Time Act and fines/injunctions to employers if the occupational health and safety legislation is not observed. A violation of the GDPR regulation could result in fines of a completely different magnitude – up to 4% of the company’s global annual turnover.
We encourage all employers to have registration of working time on their agenda in the first quarter of 2024.
