In light of the important CCOO-case (C-55/18) of 14 May 2019 of the Court of Justice of the EU on the registration of working time, Van Olmen & Wynant organised an Employment Forum, with the support of the Belgian Institute of Company Lawyers, in order to inform our clients and other HR and legal professionals about the meaning and consequences of the new jurisprudence of the EU Court. Seen the high demand for professional information, there were not one but two events, the first took place at 25 June 2019, the second a week later on 2 July 2019, attracting combined over 130 HR and legal professionals.
The speakers were our own experts on EU employment law and working time law, senior associate dr. Gautier Busschaert and of counsel dr. Pieter Pecinovsky. They first gave an overview of the underlying facts of the Spanish case between the trade union CCOO and Deutsche Bank about the absence of system to register the normal working time in light of the case law of the Spanish High Court, which stated that such a system was not necessary. However, The CJEU and Advocate-General G. Pitruzzella did not agree and concluded that in order to fully garantee the right on a maximum working time and rest periods, resulting from the Working Time Directive 88/2003, the Health and Safety Directive 89/391 and art. 31 of the Charter of Fundamentel Rights of the EU, only a working time registration system is a reliable and objective method to control working time and overtime hours. According to the Court, any other measure renders it too burdensome for the employees to prove their working time and overtime hours.
Next, the experts looked at the consequences for Belgium. In the absence of a general rule that obliges a working time registration system, only the specific time registration system for flexible hours seems to fulfill more or less the obligation of a registration system. Most other existing rules of Belgian working time law (by example structural overtime, voluntary overtime, ex post-notifications of overtime, prior approval of overtime etc.) do not seem to pass the test. However, the Ministry of Work, the federal administration, nor the social inspection seem very eager to adjust the Belgian legislation at this moment (which also has to do with the political situation), and prefer to wait until the consequences of the CCOO case become clear or until the CJEU will nuance its own case law (which, according to our experts, is not very likely). Therefore, employers, who do not have a working time registration system, have little to fear from the social inspection at the moment. Nevertheless, there is always the risk that a Belgian labour court who would adhere to an EU-law conform interpretation in e.g. a case on overtime pay and would condemn an employer to pay damages to an employee who cannot, withouit great difficulty, prove his overtime without a registration system.
Finally, our experts gave some tips and tricks for employers who do not want to run any risk and will introduce a working time registration system. Most important is that such a system:
- is reliable and objective: i.e. it needs to produce data that is verifiable and not subjective;
- does not only register overtime, but also the normal working time;
- registers the workign time for each worker individually;
- does not only register the duration, but also the begin time and end time of each period of activity;
- is not disproportionally intrusive for the privacy of the worker (it also needs to confomr with the GDPR-rules);
- is transparent: also the employees should be able to access the registered data.