Advocate General proposes that the Court of Justice of EU find that undertakings are under an obligation to introduce a system for measuring the actual number of hours worked each day
Advocate General Pitruzzella proposes that the Court of Justice of European Union find that undertakings are under an obligation to introduce a system for measuring the actual number of hours worked each day (Advocate General’s Opinion in Case C- 55/18 CCOO v Deutsche Bank SAE, Spain, 31 January 2019).
The Spanish trade union Federación de Servicios de Comisiones Obreras (CCOO), supported by four other trade union organisations, brought a group action before the Audiencia Nacional (National High Court) against Deutsche Bank SAE seeking a declaration that the bank was under an obligation to set up a system to record the actual number of hours worked each day by its employees.
According to that trade union, such a system would make it possible to check that stipulated working times were adhered to and that the obligation to disclose to union representatives information on monthly overtime worked was complied with, in accordance with national legislation. The trade unions take the view that the obligation to introduce such a system derives not only from national law but also from the Charter of Fundamental Rights of the European Union (‘the Charter’) and Directive 2003/88.
On the other hand, Deutsche Bank maintains that it is clear from the judgments of the Tribunal Supremo (Supreme Court, Spain) that no such general obligation exists under Spanish law.
In its judgment of 23 March 2017, the Tribunal Supremo found there was no general obligation to record normal hours worked, stating that Spanish law merely imposes an obligation to keep a record of overtime worked and, at the end of every month, to communicate the number of hours overtime worked by employees, if any, to their union representatives.
In particular, the Tribunal Supremo observed that the keeping of a record of normal hours worked would entail a risk of unjustified interference on the part of undertakings in the private lives of workers and that, when the Spanish legislature decided to impose the requirement for such a record to be kept, it did so in specific cases, as with part-time workers, mobile workers, workers in the merchant navy and rail transport workers.
The Audiencia Nacional is uncertain whether Spanish law, as interpreted by the Tribunal Supremo, is consistent with EU law. According to the information provided to the Court, in Spain 53.7% of overtime worked has not been recorded. Moreover, the Spanish Ministry of Employment and Social Security considers that, in order to determine whether overtime has been worked, it is necessary to know the precise number of ordinary hours worked.
The Tribunal Supremo’s interpretation would in practice deprive workers of an essential means of proving that the hours they have worked are in excess of ordinary working time and their representatives would not have the means necessary to check whether the rules have been complied with. According to the Audiencia Nacional, in such a situation national law would be incapable of ensuring effective compliance with the obligations laid down by Directives 2003/88 and 89/391.
In his Opinion today, Advocate General Pitruzzella proposes that the Court rule that the Charter and Directive 2003/88 imposes on undertakings an obligation to set up a system for recording the actual number of hours worked each day for full-time workers who have not expressly agreed, individually or collectively, to work overtime and who are not mobile workers or persons working in the merchant navy or railway transport workers and precludes national provisions which do not impose such an obligation. He also states that Member States are none the less free to determine what method of recording of the number of hours actually worked each day is best suited for ensuring the effectiveness of EU law.
In summary, it is the Advocate General’s view that the obligation to measure the number of hours worked each day plays an essential role in ensuring compliance, on the part of the employer, with all the other obligations laid down by Directive 2003/88, such as those concerning the limits on the duration of the working day, daily rest periods, the limits on the duration of the working week, weekly rest periods, and the possible working of overtime.
Those obligations relate not only to the right of workers and their representatives to be able to review periodically the amount of work done for remuneration purposes, but also, and above all, to the protection of health and safety in the workplace. The national court is required to determine, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, whether it can arrive at an interpretation of domestic law that is capable of ensuring the full effectiveness of EU law.
In the event that it is impossible to interpret national provisions, such as the Spanish provision at issue, in a manner consistent with Directive 2003/88 and the Charter, the national court must disapply such provisions and satisfy itself that the obligation on undertakings to equip themselves with an adequate system for recording the number of hours actually worked each day is met.
The Advocate General notes that that obligation to interpret national law in a manner consistent with EU law entails an obligation for national courts to change established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive.
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