Court of Justice rules that registration of working time is mandatory
On 14 May 2019, the Court of Justice of the European Union (CJEU) decided on the question if and to what extent an employer is required to establish a time registration system to measure and control the working time of the employees.
The CJEU has issued a judgment in a case introduced in Spain. Spanish law does not provide a general obligation for the employer to implement a time registration system. The same goes for Belgian law.
The CJEU has now decided that this is contrary to EU law. According to the European Court of Justice, the absence of a time registration system leads to the impossibility to record, in an objective and trustworthy way, how many hours the employee has worked and when exactly. Moreover, it makes it impossible to determine how much overtime the employee has performed and, the fact that employers are not obliged to introduce such a system, finally also leads to insufficient protection for the employees.
As a consequence, the CJEU ruled that employers should be obliged to implement an objective, trustworthy and accessible system, by which the daily working hours of each employee can be registered. The concrete form of the system may depend upon the sector and the specific characteristics of the company. The well-known time clock could be an example of such a time registration system, but time registration is also possible via an app or badge.
It appears that as a consequence of this judgment, all Belgian companies need to implement such a time registration system. At this moment, this is only mandatory in specific cases, for instance, in the implementation of certain flexible work schedules.
In Belgium, the reaction on this judgment is still pending. At this moment, in the absence of a general obligation to implement a working time registration system, employers cannot be sanctioned for the absence of such a system.
Even without the intervention of the Belgian legislator, the judgment will have an impact on the burden of proof of the employer in case of a dispute related to overtime performed and overtime pay, when no time registration system exists within the company. Most likely, the risk that the employer will be sanctioned in case of non-compliance with the legal provisions on working time will be higher, as without a time registration, it will be more difficult for the employer to prove compliance.
To be continued.