|Judgment in Case C-55/18
CCOO v Deutsche Bank SAE, 14th May 2019, (Grand Chamber CJEU)
One of the more mundane provisions of the Organisation of Working Time Act, 1997, is the requirement, at section 25, which places on employers the obligation to maintain records to show compliance with the Act. Practical effect to this provision was given by the Organisation of Working Time (Records) (Prescribed Form and Exemption) Regulations,2001. SI 473 of 2001. These regulations are of enormous daily importance to both employers and employees, not least because the records required to be maintained are necessary data that employers must retain for the purposes of the General Data Protection Regulation.
The 2001 regulations require employers to keep:
- A record of the number of hours worked by employees in each week (excluding meals and rest breaks) on a daily and weekly basis;
- A record of leave granted to employees in each week by way of annual leave or in respect of a public holiday and payment made in respect of that leave;
- A weekly record of the notification of the starting and finishing time of employees.
The Regulations also require employers to keep a copy of the terms and conditions of employment given to each employee under the Terms of Employment (Information) Act, 1994. It should be noted that the Records Regulations do not apply to doctors in training or to mobile transport workers. Section 25 gives effect in Ireland to Article 22.1. ( c) and (d) of the Organisation of Working Time Directive,2003/88/EC which provided for certain records to be kept by employers.
The Irish Records Regulations have not been especially controversial over the years and while a number of employers may find the record keeping onerous, no real objection to the underlying necessity for these has been taken. It is therefore something of a surprise to see that the first leading decision of the Grand Chamber of the CJEU in 2019 deals precisely with the necessity to keep proper records for the measurement of daily working time.
The Spanish trade union, Federación de Servicios de Comisiones Obreras (CCOO), brought a group action before the Spanish High Court, in 2017,seeking a judgment declaring Deutsche Bank SAE to be under an obligation to set up a system for recording the time worked each day by its members of staff. The union considered that such a system would make it possible to verify compliance with the stipulated working times and the obligation, laid down in national law, to provide union representatives with information on overtime worked each month. According to CCOO, the obligation to set up such a recording system is derived not only from national law but also from Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the Working Time Directive. Deutsche Bank contended that Spanish law did not lay down such an obligation of general application. It argued that that case-law showed that Spanish law requires only, except where there is an agreement to the contrary, that a record be kept of overtime hours worked by workers and the communication, at the end of each month, to workers and their representatives of the number of hours overtime thus worked.
The Spanish court referred questions on this matter to the Court of Justice. According to information provided by the Spanish court to the Court of Justice, 53.7% of overtime hours worked in Spain are not recorded. In addition, the Spanish Minister for Employment and Social Security considers that it is necessary, in order to determine whether overtime has been worked, to know precisely the number of normal hours worked.
In giving judgement, the Grand Chamber of the CJEU declared that the Working Time directive, read in the light of the Charter, preclude a national law that, according to the interpretation given to it in national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured.
The Court noted, first of all, the importance of the fundamental right of every worker to a limitation on the maximum number of working hours and to daily and weekly rest periods, which is enshrined in the Charter and given specific detail in the Working Time Directive. Member States are required to ensure that workers actually benefit from the rights that are conferred on them, without the specific arrangements chosen to implement the directive being liable to render those rights meaningless. The Court recalled that the worker must be regarded as the weaker party in the employment relationship, such that it is necessary to prevent the employer from being in a position to impose a restriction of his rights on him.
The Court held that, in the absence of a system enabling the duration of time worked each day by each worker to be measured, it is not possible to determine, objectively and reliably, either the number of hours worked and when that work was done, or the number of hours of overtime worked, which makes it excessively difficult, if not impossible in practice, for workers to ensure that their rights are complied with.
The objective and reliable determination of the number of hours worked each day and each week was essential in order to establish whether the maximum weekly working time – including overtime – and minimum daily and weekly rest periods have been complied with. The Court considered therefore that a national law which does not provide for an obligation to have recourse to an instrument that enables that determination does not guarantee the effectiveness of the rights conferred by the Charter and the Working Time Directive, since it deprives both employers and workers of the possibility of verifying whether those rights are complied with.
Such a law could also compromise the directive’s objective of ensuring better protection of the safety and health of workers, which is the case irrespective of the duration of the maximum weekly working time laid down in national law. By contrast, a system enabling the time worked by workers each day to be measured offers those workers a particularly effective means of easily accessing objective and reliable data as regards the duration of time actually worked, which facilitates both the proof by those workers of a breach of their rights and also the verification by the competent authorities and national courts of the actual observance of those rights.
Consequently, in order to ensure the effectiveness of the rights provided for in the Working Time Directive and the Charter, the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured. It is for the Member States to define the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size. It is noteworthy that the Court specifically deployed its recent case law on the Charter discussed in the last issue to support its ruling, as well as placing the topic of working time law once again in the context of the 1989 General Health and Safety Directive.
This is a powerful judgement of the Court once again placing the issue of working time in a constitutional context due to its place in the Charter. The Records Regulations create a criminal offence carrying a maximum fine of €2,500 for failure by an employer to keep records but individual employees cannot refer such an issue for adjudication by the Workplace Relations Commission, in order to obtain individual redress, as section 25 of the Working Time Act is not one of the relevant provisions set out in section 27 that may be so referred.
One would have to query whether this is any longer sustainable in the light of the judgement in CCOO, especially taking into account the CJEU’s ruling in Minister for Justice and Equality v WRC and Boyle last December, again discussed in our last issue.
Important employment law directives have been agreed by the European Parliament and Council
The legislative cycle of the European Union has concluded in the spring of 2019 with the adoption of new Directives on transparent working conditions replacing the 1991 Directive on the proof of the employment contract; a new comprehensive whistleblowing directive going even further than Ireland’s Protected Disclosures Act, 2014; and a directive on work life balance that failed to be as ambitious as its proponents had hoped for.
Unfortunately the three directives have not been formally signed into law at the time of writing but it is planned to examine these in our next issue.