Summary

This article deals with the aftermath of the ECJ’s CCOO judgment (14 May 2019, C-55/18), which has been a major issue in various EU jurisdictions. The article consists of two parts. This second part discusses some particular consequences in Germany.

Limits and opportunities for practice

‘Trust-based’ working time

The ECJ’s decision has been harshly criticized in the German press for a wide variety of reasons. One rumour that is particularly persistent is the alleged prohibition of trust-based working time (meaning the consent between employer and employee that the employer does not control the employee regarding the time used to deliver a certain result) or its illegality under European law. However, neither the ECJ nor the German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) are challenging flexible forms of work used in the world of work. The use of trust-based working time models continues to be possible within the previous framework, as long as the regulatory requirements (i.e., in particular those relating to working time) are complied with.
There is no clause in the European and/or national working time law or other health and safety regulations that would allow suspension of the law by concluding an agreement allowing trust-based working time. Such agreement simply only stipulates that the employer refrains from exercising its right to give directions regarding the time of work, without affecting the statutory law. At the same time, this means that the agreement of trust-based working time does not release the employer from compliance with the requirements of working time law and never has done so. The employer merely shifts its right of disposition with regard to working time within these statutory limits to the employee.
Considering this characteristic of trust-based working time it becomes obvious that this cannot be affected by the recording obligations resulting from public labour or occupational health and safety law.
The obligation to document working hours can also be delegated to the employee without further ado. In fact, the ECJ and the BAG explicitly classify the delegation to the employees as permissible. The above-mentioned decisions only lower the risk of not detecting violations of the German Working Time Act (Arbeitszeitgesetz, ‘ArbZG’) in the context of trust-based working time.

Multiple employments

The BAG’s guiding principles on the recording of working time raise a question that is still largely unanswered in German law, namely, how to deal with multiple employments or whether the obligation to record working time applies also to working time with other employers. There is also little to be found in the ECJ’s decision practice in this regard, as this is an issue specifically concerning German law.
According to Section 2(1) ArbZG “hours of employment (work shifts) […] for multiple employers are to be added together” and accounted for in total with regard to the requirements of the ArbZG or the Working Time Directive 2003/88/EC.
The Working Time Directive does not comment on this. However, in view of its protective purpose, namely the protection of health repeatedly emphasized by the ECJ, it seems likely that the Directive must be interpreted as meaning working hours are to be added together here as well.
Having said that, the recording of working hours (also performed for third parties) by the respective employer seems to be practically difficult but currently not (yet) required.

Data protection hurdles between employers

If an employer wanted to set up a system that met the above requirements and recorded all the working hours that were actually relevant, it would have to rely on a corresponding statement by the employee about his/her other jobs (working hours). This is because there is no (explicit) statutory provision in Germany that obliges employers to exchange information about the working hours performed by an employee. Based on the data protection regulations applicable in Germany, a corresponding exchange of information on working hours held by the respective employer (without the employee’s consent) would probably be illegal.

Duty of the employee to provide information?

A corresponding – aggregate – record of the working hours would therefore only be possible for the employer if the employee was obliged to provide the required information.

Problem: there is no statutory right to information

In Germany, there is no general written obligation in this respect. And also interpreting the existing statutory regulations seems to indicate that there is generally no obligation in this respect because there are special provisions in national and European law for some professional groups (e.g. Section 21a(8) ArbZG and Article 4(b) of the Road Transport Working Time Directive 2002/15/EC) which explicitly require the recording of working times across employers.
Conversely, this indicates that without such obligation there is simply no corresponding obligation on the part of the employee to provide information.

Claim for information due to German case law?

An obligation to provide information in cases of multiple employment relationships has been discussed in German case law on several occasions in previous years, but it is difficult to conclude a valid instrument/claim for information for the documentation requirements that have now been attested by the BAG.
According to established case law (see, e.g., BAG 18 July 1996 – 6 AZR 314/95) there shall be a claim for information regarding the existence of further employment relationships and the time scope of those employment relationships. This applies in any case if it cannot be ruled out that the limits of the ArbZG (and thus also of the Working Time Directive) are exceeded by the other employments. However, as the BAG itself expressly clarified, the limit of the claim is the principle of proportionality. A comprehensive documentation obligation/obligation to disclose data would, however, represent a considerable encroachment on the fundamental rights of each employee, while the necessary justification for this is at least not obviously given.

Right to information under European law also not evident

The grounds of the CCOO decision contain several hints that the ECJ, too, only assumes that the working time recording/working time documentation is company and therefore employer-related, but no clear guidelines for action can be concluded from this. Among other things, the ECJ points out that the authorities must be able to obtain “access to objective and reliable data as to the duration of time worked by the workers in each undertaking” in order to exercise their control mandate. From the ECJ’s point of view, however, it is apparently not obvious to assume that employers have a mutual right to information between themselves or that employees have a corresponding duty to provide information.

What does this mean in practice?

For the time being, it appears obvious to assume that there is currently no cross-employer documentation obligation with regard to working hours. Moreover, without legally anchoring such a documentation obligation, a data transfer between two employers does not seem possible.
Nevertheless, the ECJ’s requirements for achieving practical effectiveness of the Working Time Directive are high. Employers are required to carry out a certain amount of monitoring in order to ensure that the Directive is implemented effectively in practice. In our opinion this means that when an employer approves a secondary/another employment, it must ensure that this does not necessarily lead to violations of German labour law (especially of the time limits stated in the ArbZG) and at least investigate any suspicious circumstances. On the basis of the case law described above, there is a corresponding right to information vis-à-vis the employee in a case of suspicion.

Differentiation by the type of working time

In Germany there is also a distinction to be made between the permissible working time under the ArbZG and remuneration-based working time. This issue is particularly evident in the area of business trips and on-call times.

Business trips

There is room for manoeuvre in the area of business trips, especially with regard to travel times outside normal working hours. Whether these times are working time in the sense of occupational health and safety law (i.e. in the sense of the ArbZG) usually depends to a large extent on the actual demands made on the employee by the employer. This means if the employee (continues to) perform work-related activities during this time (e.g. prepares for or follows up on an appointment or works elsewhere) or drives the car used for the business trip themself, this continues to be working time in the sense of labour protection law/the ArbZG. If, on the other hand, the employee can do what they want during the trip (e.g. sleep, etc.), this does not necessarily constitute working time in this sense.
Against this background, it may be wise to ensure that travel times during business trips are explicitly identified and recorded as such. This would not only accommodate an objective system, but also enable proof of compliance with the requirements of the ArbZG (both on account of the maximum daily working time and the minimum rest periods) and visibility of claims to overtime compensation.

On-call duty

In Germany it is not uncommon to promise a minimum amount of working time that is subject to remuneration in the case of work assignments during on-call duty, or to agree that home-to-office times should count as working time (subject to remuneration) although home-to-office times usually do not count as working time under German law. In these cases, too, it may make sense in view of the requirements of the ECJ – to the extent the relevant agreements so permit – to show the actual working time in the working time documentation.

Executive staff

Up to now in Germany there has been no obligation to record working time for executive employees as they are excluded from the scope of application of the ArbZG. The anchoring of the principles of the ECJ in the CCOO decision into Section 3 of the Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and Health Protection of Workers at Work (Arbeitsschutzgesetz, ‘ArbSchG’), however, might lead to a change in this respect, as the ArbSchG does not provide for an exemption for executive employees.
Section 18(1) No. 1 of the ArbZG provides for an exemption for executive employees within the meaning of Section 5(3) of the Works Council Constitution Act (Betriebsverfassungsgesetz, ‘BetrVG’). Section 18(1) No. 1 ArbZG states:

This Act [the whole of the ArbZG and its provisions] is not applicable to:
1. executive staff within the meaning of Section 5(3) of the BetrVG.

The BAG leaves unanswered the question of whether this exemption also applies to the obligation to document working time according to Section 3 ArbSchG and, moreover, whether Section 18 ArbZG is in compliance with European law, as these questions were not relevant to the decision.
In case the BAG actually wanted to deny the applicability of Section 18 ArbZG – and thus the exception for executive employees from the provisions of the ArbZG – to the obligations under the ArbSchG, this would probably mean that, without a corresponding change in the law, the working time of executive employees, too, would have to be recorded. This is because the ArbSchG itself does not contain any exemption corresponding to Section 18 ArbZG. And Article 17(1) of Directive 2003/88/EC, which in principle grants the national legislator the option of establishing deviating national regulations – cannot by itself – as the BAG expressly clarified – be considered an exemption without being put into national law. Hence, especially in this respect, clarifying legislation or at least a clarification by case law would be desirable. Nevertheless, the consequences are currently manageable in any case. This is because there are no sanctioning options available (so far) in German law.
Regarding the question of the conformity of Section 18 ArbZG with European law, the following should be mentioned for the sake of completeness. There are some voices in the legal community that consider Section 18 of the ArbZG to be too far-reaching, because it completely excludes certain groups of persons from the scope of application of the ArbZG, hence violating Article 17(1) of Directive 2003/88. Considering that Article 17(1) merely authorizes derogations from (certain) central requirements (namely the daily rest periods, the breaks, the weekly rest periods and the maximum weekly working time as well as the length of night work and the reference periods for the weekly rest periods) provided that certain conditions are met, this would render Section 18 of the ArbZG inapplicable.
However, this does not change anything for the time being because as long as Section 18 ArbZG has not been declared inapplicable, an employer cannot be accused of not having followed the law.

Summary

There is no question that the BAG’s decision has caused a considerable stir in recent weeks in Germany. However, when taking a closer look at the decision, it becomes apparent that the actual changes are manageable. It remains to be seen whether this will change, particularly as a result of future legislation. Further clarity in this area would be desirable in any case.

Comments from other jurisdictions

Belgium (Gautier Busschaert, Van Olmen & Wynant): In general, Belgian law does not provide for an obligation to register working time. Overtime must be proven by the employee. Therefore, the situation is not in conformity with the Deutsche Bank judgment of the CJEU.
However, the majority of Belgian case law is reluctant to reverse the burden of proof and ask the employer to prove that no overtime was accomplished because the courts do not believe this is possible via an interpretation of Belgian law in conformity with the Working Time Directive.
Without the introduction of a new legal obligation, most courts will not impose an obligation for employers to register working time and it will remain up to the employees to prove their overtime. However, some courts have ruled that an interpretation in conformity with the Directive is possible and have reversed the burden of proof in favour of the employee.
This issue has created a situation of legal uncertainty, and neither the government, nor parliament, are eager to insert this obligation in the law. Finally, the powerful national social partners are divided (employers are against an obligation, trade unions are in favour).

Denmark (Christian K. Clasen, Norrbom Vinding): As in Germany, the ECJ’s decision of 14 May 2019 in case C-55/18 has been criticized for being particularly excessive and for posing several practical issues. However, in Denmark the actual consequences of the ECJ’s decision are yet to be seen.
In Denmark, there are no rules regarding the monitoring of employees’ working time. However, as in Germany, the ECJ’s decision has not yet led to any changes in Danish legislation. This is despite the fact that the ECJ clearly states in its decision that the Member States must require employers to set up an objective, reliable and accessible system enabling the measurement of the duration of time worked each day by each worker. But, notwithstanding that, the legislature has been inactive in this regard for more than four years.
What may be more surprising is that the ECJ’s decision has not led to any cases about the consequences of the decision in Denmark, including any cases against public authorities. Thus, no trade union has attempted to enforce the employer’s obligation to measure employees’ working time, and the Danish courts have therefore not had the opportunity to decide on the consequences of the ECJ’s decision. This is in some way noteworthy, as public authorities in their capacity as employers could be considered directly obligated by the ECJ’s decision due to its potential direct effect.
The reason is probably to be found in the fact that the ECJ’s decision poses some potential unfortunate consequences for both employers and employees, including some of those addressed by the German contributors above. It might therefore not have been seen as being in the interest of employers or employees to raise any claims based on the decision, which therefore still awaits legislative action.
According to the Danish government, new legislation will be implemented following the ECJ’s decision and a proposed bill is expected this autumn.

Finland (Janne Nurminen, Roschier, Attorneys Ltd.): Flexible and extended flexible working hours schemes

The Finnish Working Hours Act (872/2019, as amended) enables flexible working time arrangements. In Finland flexible and extended flexible working hours schemes give employees freedom to define the length of a working day as well as the placement of the work within certain statutory limits. The flexible working hours scheme has been in use in Finland for a long time and it has not caused any major issues from a working time recording point of view. Also, the Finnish Working Hours Act includes a specific provision that concerns recording working time in the extended flexible working hours scheme.
Even though the working time arrangement would be flexible or extended flexible, the employer is still responsible for recording and monitoring the working time of the employees. In practice, the employer monitors the working time based on the employee’s punch ins/outs (typically electronic) or on other information received from the employee. The working time recording obligations in the flexible and extended flexible working hours schemes are explicitly regulated in Finland. In practice it should not be an issue for an employer to comply with the rules.

Multiple employments (with several employers)

The issue of recording working time when the employee has multiple employers has not been topical in Finland. The statutory working time limits in Finland are employer/company-specific. There is no regulation that would require an employer to record working time the employee has carried out by working for another employer. If such a requirement were enacted, it would cause multiple issues related to e.g. data privacy, priority of contracts and many others.

Business trips

According to the Finnish Working Hours Act, generally, time spent travelling is not considered working time, unless such time is simultaneously regarded as performance of work. The same rule applies to travelling on business trips, even if the employer would have explicitly ordered the business trip.

On-call duty

According to the Finnish Working Hours Act, time spent on stand-by is generally not regarded as working time unless the employee is required to remain at the workplace or in its immediate vicinity. Periods of active work during on-call duty are naturally considered working time.

Executive staff

Also in Finland executive staff fall outside the scope of the Finnish Working Hours Act. The obligation to record working time is included in the Finnish Working Hours Act. Since executive-level employees are excluded from the scope of the Act, the working time recording obligations do not apply to these employees.