ECJ has decided on the dilemma: setting up a system enabling the duration of time worked each day by each worker to be measured is a must.
The European Court of Justice requires to set up such an objective, reliable and accessible system, which allows to enable the duration of time worked each day by each worker (number of hours worked and hours of overtime worked, also when that work was done) to be measured.
The European Court of Justice gave its judgment on May 14, 2019 in the Federación de Servicios de Comisiones Obreras contra Deutsche Bank SAE case No. C-55/18 conducted on the basis of the reference for a preliminary ruling of the Spanish National High Court (Audiencia Nacional). According to this, solely the practice of setting up a system enabling the duration of time worked each day by each worker to be measured is compatible with the laws of the EU.
In the view of the European Court of Justice, the above obligation is reasoned by two key circumstances.
With regard to, that employment relationships are asymmetric by nature, where employees are considered as „weaker parties”, registration is necessary particularly due to the fundamental right to the limitation of maximum working hours and to daily and weekly rest periods, which may be derived from the safety and health protection of workers. As, in the absence of sufficient database, there would be no effective evidence available for employees in case of an incidental infringement of their rights.
In consequence thereof, authorities and courts facilitate the supervision regarding the enforcement of the above rights in the course of which only controlling these records provides an acceptable solution.
Therefore, the obligation extends to the set up of such an objective, reliable and accessible system, which allows to enable the duration of time worked each day by each worker to be measured, especially to recall the number of hours worked and when that work was done, also the number of hours of overtime worked unchanged, moreover, which is also in compliance with the special provisions regarding the form of registration, attributes of each sector of activity concerned, or the specific characteristics of certain undertakings set forth by the member states, if any (see: transport sector).
Although, several constructions of performance of work – especially of flexible working hours – have been developed by the international practice lately, which often lack clear expectations related to the methods of measuring duration of time worked, Act I of 2012 on Labor Code (“Labor Code”) disposes rather unambiguous thereof in Hungary, which is also in consonance with principles of the laws of the EU.
As a general rule, employers register the durations of regular working time and overtime, stand-by duty, periods of leave and the duration of overtime undertaken voluntarily according to Section 134(1) of the Labor Code, while the above obligation includes registration of the latter two elements of this list in respect of adoption of trusted working hours pursuant to Section 96(2).
In this context, we kindly draw the attention of our honorable Client to that it is expressly recommended to supervise the definition of the adopted working arrangements and the sufficient recordkeeping related to the above with regard to the timeliness of this issue.
