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Tracking working time of employees – recent decision of the Court of Justice of the European Union

 

10 July 2019

In a decision C-55/18 issued by the Court of Justice of the European Union (ECJ) on 14 May 2019, the ECJ has held that every employer needs to implement measures to be able to track working time of employees.

The decision has been widely commented in the press.

From a Luxembourg perspective, the actual impact of the decision might at first sight remain limited.

Indeed, since the law of 14 March 2017, employers in Luxembourg are obliged to register the beginning, the end and the duration of the daily working time, on top of additional mandatory registrations, such as on all extensions (and related payments) of the normal working hours, hours worked on Sundays, on public holidays or during the night.

It remains that we would like to share our first impressions:

  • When the mentioned Luxembourg law of 14 March 2017 was introduced, it was heavily criticised, in particular by employers’ lobby groups. There was a hardly disguised hope that a change in the law – in the sense of a return to the previous legal situation - might intervene at a certain point in time. The decision of the ECJ probably puts an end to these hopes.

  • Currently, under Luxembourg law, higher ranking employees (cadres supérieurs) are exempted from the rules on maximum working hours, daily and weekly rest periods and thus from working time registration. It is uncertain to what extent working time registration will, in the future, be necessary more generally for all workers, including higher ranking employees. Given that the decision seems to allow member states to apply specific rules around registration of working time, it will need to be seen whether exceptions (such as those existing under Luxembourg law) will be tolerated; our expectation would be that without a legislative change, most employers would want to continue not to register working time of higher ranking employees.

  • The commented decision does not provide input as to how the registration needs to be done. It only refers to the employers’ requirement to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured. It seems to leave member states freedom to framework how the registration can or should occur. Since the implementation of the Luxembourg law of 14 March 2017, various systems have been operated on the Luxembourg market, including in particular the recourse to badging systems and/or the use of time sheets.

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