EU Employers Must Track Hours, Not Just Overtime, Court Rules

(CN) – Backing a union’s suit against Deutsche Bank, the European Court of Justice ruled Tuesday that all employers must be required to have a system for tracking the working hours of staff.

A flag for Deutsche Bank flies outside the German bank’s New York offices on Wall Street on Oct. 7, 2016. (AP Photo/Mark Lennihan, file)

When the Spanish trade union CCOO, short for Federación de Servicios de Comisiones Obreras, initiated the dispute, Deutsche Bank shot back that its obligations under Spanish law include merely keeping a record of overtime and communicating those figures each month to the staff and their representatives.

Though the bank derived this interpretation from the precedent of Spain’s Supreme Court, its National High Court questioned whether that ruling contravened EU law.

In asking the European Court of Justice to weigh in, the National High Court noted that 53.7% of overtime hours worked in Spain are not recorded.

The Grand Chamber of the Luxembourg-based court sided Tuesday with the union.

“In the absence of a system enabling the duration of time worked each day to be measured it remains equally difficult, if not impossible in practice, for a worker to ensure effective compliance with a maximum duration of weekly working time, irrespective of what that maximum duration may be,” the opinion states.

“That difficulty is by no means mitigated by the requirement for employers in Spain to set up … a system for recording the overtime hours worked by workers who have given their consent in that respect,” the ruling continues. “The classification of hours as ‘overtime’ presupposes that the amount of time worked by each worker concerned is known and therefore measured beforehand. The requirement to record only overtime hours worked does not therefore provide workers with an effective means of ensuring, first, that the maximum weekly working time laid down by Directive 2003/88 — which includes overtime hours — is not exceeded and, second, that the minimum daily and weekly rest periods provided for by that directive are observed in all circumstances.”

The court called it insufficient for workers to “rely on other sources of evidence, such as, inter alia, witness statements, the production of emails or the consultation of mobile telephones or computers, in order to provide indications of a breach of those rights and thus bring about a reversal of the burden of proof.”

“Unlike a system that measures time worked each day, such sources of evidence do not enable the number of hours the worker worked each day and each week to be objectively and reliably established,” the ruling states.

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