The Employer’s Duty to Record Working Hours

Authors: Ann Bugeja & Christine Borg Millo

EU law lays down rules regarding working hours of an employee such as the maximum working hours per week,  minimum rest times and the maximum overtime hours, which are all enforceable by Member States (MSs) through local employment legislation. Nevertheless, ambiguities do arise in the duty of employers to keep an objective, reliable and accessible record of the hours which each employee works.

The Duty to Keep an Objective, Reliable and Accessible Record of Hours Worked 

Maltese legislation imposes the duty to keep records of working hours by virtue of The Transparent and Predictable Working Conditions Regulations (S.L. 452.126 of the Laws of Malta) under article 9, which states that employers are to keep a record of the hours worked and daily and weekly rest periods of all of their employees. This reflects what is stated in article 22 of the EU Directive 2003/88/EC, concerning certain aspects of the organisation of working time, and which imposes a duty on employers to keep a record of hours worked to protect employees’ health and safety.

Firstly, EU Directive 2003/88/EC and more specifically, articles 3, 5 and 6 [1]set out the rules on daily rest, weekly rest, and the maximum weekly working time, in order to ensure that employees’ rights, in terms of their overall physical and mental health and safety, are being safeguarded. The Directive has since been transposed into Maltese law by virtue of the following legislation:

• EU Directive 89/931/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work, gives employees and their representatives the right to ask employers to instill measures protecting their health and safety. For instance, employees have a right to be involved in discussions involving any decision which could affect their health and safety at work.
• The EU Charter of Fundamental Rights, namely article 31, protects the rights of employees by ensuring that they are entitled to adequate working conditions which continuously respect their health, safety and dignity. It also protects the right to minimum rest periods, maximum work hours, and annual paid leave. However, the periods of time are not specified in the EU Charter but are found in the EU Directives mentioned hereabove.

• The Organisation of Working Time Regulations (S.L. 452.87 of the Laws of Malta), specifically article 20, states that employees cannot be made to work more than 48 hours a week unless they directly agree to do so. It also places a duty on the employer to keep a record of hours worked by each employee when they are working more than 48 hours.
• The Transparent and Predictable Working Conditions Regulations (S.L. 452.126 of the Laws of Malta) in article 9, sets out a number of records to be kept by the employer, including also the duty to keep a record of hours worked by each employee.

Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (Case C-55/18)

In the case of CCOO v Deutsche Bank SAE (C-55/18), decided on the 14^th of May, 2019, the Court of Justice of the European Union (Grand Chamber) (ECJ) considered several factors relating to the duty of the employer to keep a record of working hours of any working employee.

The ECJ expressed that the Directive 2003/88/EC cannot be interpreted by national courts of MSs in such a way that it diminishes the rights of the employee. It also stated that employers have a duty to observe the minimum daily rest period of 11 consecutive hours, weekly rest period of 24 consecutive hours and the maximum of 48 hours per week of worked hours. This is with the objective to protect the overall health and safety of employees. The Directive, in light of existing EU rules and the Charter, precludes the existence and interpretation of local laws which allow national legislation to supersede EU rules on record-keeping.

The ECJ confirmed that interpreting local laws in a way that allows employers to not keep such record renders the rights of employees protected in the afore-mentioned Directive articles and the Charter meaningless. This would thus be incompatible with EU law. It also recognised that it is difficult to objectively and accurately prove the hours worked by the employee without such records. In cases where records are indeed not kept, the employee must rely on correspondence, witness testimony and similar evidence of worked hours but this is not as reliable as an up-to-date record maintained by the employer.

The ECJ also made reference to the burden of proof of record-keeping which needs to be shown in such cases. It stated that it is unfair and unwise to place such a burden of proof on the employee due to their weaker position in the employment relationship, and lack of resources in comparison to their employers.

Yet, by way of example, and unlike Malta, local legislation in Belgium does not enforce the duty of record-time keeping. This has caused several issues in terms of applying the doctrine of supremacy of EU law, due to the binding nature of the EU Charter and the duty of the MSs to implement the rules set out in Directives. Belgian courts are reluctant to apply the necessity and duty of record-time keeping by employers in domestic courts. They have sustained that the interpretation of the ECJ on record-keeping is regarded as being contra legem to their national laws in force.

The Burden of Proof

As considered in the aforementioned judgment, the disadvantaged position of the employee in the employment relationship means that employees are reluctant to bring evidence against their employer on their working time out of fear of possible repercussions which they may suffer, such as non-promotions and subordination. Therefore, the burden of proving how many hours the employee has worked lies with the employer. This is because it is more suitable and accurate for the employer to keep a record of working hours of their employee, and also easier for the employer to adequately prove the working hours worked through company procedures, witness testimony or work correspondence. The ECJ stated that the employer shall bear the onus of proof at least in cases where they can use such proof in their favour, but ideally in all other cases also.

Concluding Remarks  

Overall, Maltese legislation complements EU law regarding the duty to keep records of working time, implementing it by virtue of S.L. 452.126. The ECJ remains consistent with the  statement that the duty to keep an objective, reliable and accessible record of hours worked should be enforced in the MSs, ultimately in order for it to be compatible with EU law. The MSs must continue to introduce and maintain measures to impose this duty on employers to be compliant with EU law, and for ensuring that the health and safety of European workers is safeguarded.

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[1] Article 3 discusses the minimum daily uninterrupted rest period as being that of 11 hours.

Article 5 discusses the minimum weekly uninterrupted rest period of 24 hours, in addition to the 11 hours of rest daily.

Article 6 discusses the average weekly working time, including overtime, which should not exceed 48 hours.