New rules regarding registration of working hours

Why this legislative change?

Today, EU's Working Time Directive is implemented in Danish law through the Danish Working Hours Act, which is to ensure minimum protection for employees concerning the determination of their working hours.

On 14 June 2019, the European Court of Justice ruled on the so-called Deutsche Bank case regarding the interpretation of The Working Time Directive. In this decision, the court determined that member states must require employers to implement "an objective, reliable, and accessible system that allows the measurement of the length of each individual worker's daily working time.”

Therefore, in 2020, the Danish Ministry of Employment established a taskforce to investigate the Danish interpretation and application of The Working Time Directive and how recent practice in the field is in line with Danish legislation.

As such, the proposed amendment to The Working Hours Act was based on the taskforce’s findings, with reference to a collective agreement reached between the Danish Confederation of Trade Unions (FH), the Confederation of Danish Employers (DA), and Akademikerne. It was presented to the Danish Parliament on 8 November 2023, passed on 23 January 2024, and will take effect on 1 July 2024.

What are the main changes in The Working Hours Act?

The new rules include two central points: Introduction of a time recording system for working hours and the possibility of an opt-out if employees and employers agree to deviate from the rules of The Working Hours Act.

1. Introduction of a working time registration system

The new rules include a new obligation for employers to implement a registration system for employees' working hours. The key elements are outlined below:

• Employers are free to choose how they design the working hours registration system. However, the system must meet the requirements of being "objective, reliable, and accessible" and must "enable the measurement of each individual employee's daily working hours."
• The system should contribute to ensuring that provisions regarding rest periods and the maximum weekly working hours are adhered to.
• Employees must have access to their own information in the system.
• Registration and use of employee information will continue to be subject to other applicable rules and agreements, such as GDPR regulation and agreements on control measures. Companies are obligated to retain the information for 5 years.

It will be the employer's responsibility to document employees' working hours. This falls under the management's right to decide how it should be done while adhering to both collective agreements and labour law practices regarding working hours registration.

Several companies have already implemented time registration systems. However, for the majority, it will still be relevant to discuss the following questions regarding the use of the systems to ensure ongoing compliance with rules on registration of working hours.

• How often should employees register their working hours?
• How should they register working hours?
• How do we approve time registrations?
• How do we register breaks?
• Which individuals are authorized to disclose time registrations?

2. The option to opt-out

According to the new rules, employees and employers are entitled to make individual agreements to deviate from the rules of The Working Hours Act. This includes the so-called 48-hour rule, the rule about breaks after more than 6 hours of work and night work. These opt-out agreements can be entered if the employee's rights are protected through a collective bargaining agreement at the workplace.

A key element of the new act is that the authority to enter into such individual agreements is established in the collective bargaining agreements while the act sets the framework for how it may be done. According to the new rules, several conditions must be met:

• Agreements for work exceeding 48 hours per week on average should be limited as much as possible. At the same time, it must be ensured that the work is performed in a safe manner.
• To prevent abuse, the arrangement can only be used by employees covered by collective bargaining agreement provisions or local agreements on standby duty, and who perform critical societal functions.
• The average weekly working hours must not exceed 60 hours by individual agreement.
• The employee is at any time able to withdraw consent to work more than 48 hours on average per week.
• Employees who do not wish to make such an individual agreement must not be subjected to less favorable treatment.

Certain employees are exempt

In addition to the two main points, certain employees will be exempt from the rules of working hours registration. This applies to employees whose working hours are not measured or predetermined, and employees who may determine their own working hours. For example, this may include employees who make decisions about their working hours or hold managerial positions.