Reason for the bill
The object of the EU Working Time Directive, which has been implemented in the Danish Act on Working Hours, is to ensure minimum standards as to the employee’s safety and health in connection with the organisation of the working time in relation to daily rest periods, breaks, weekly rest periods, annual holiday and aspects in connection with night work, shifts and work rhythm.
Since the adoption in 1993, the European Court of Justice has considered the construction of the Working Time Directive in a number of judgments. These judgments, especially C-55/18 on the organisation and measuring of the daily working time to ensure observance of rest periods and maximum weekly working time, have given rise to considerations in relation to the implementation of the Working Time Directive in Danish law.
It was therefore decided in 2020 to set up a working group which was to consider the question on working time. The working group was set up under the Ministry of Employment’s Implementation Committee. The working group was to clarify and discuss the impact of case law in relation to Danish law.
The bill is a result of the working group’s report and an agreement between DA, FH and Akademikerne on how legislation within this area can be adjusted.
The bill’s first key element – Requirement for registration of the employee’s daily working hours
The bill introduces a new obligation for the employer to implement a working time registration system making it possible to measure each employee’s daily working time. It is noted that applicable law does not generally require registration of the employee’s daily working time.
The employer must implement an objective, reliable and available working time registration system which makes it possible to measure the employee’s daily working time to ensure observance of the applicable rules on daily and weekly rest periods and maximum weekly working time.
The bill provides that the employer must ensure that the employee has access to his/her own data in the working time registration system. The reason for this access is that the employee may raise a claim and be awarded compensation if the employee’s rights are violated under the Act. Furthermore, the employer must store the registered data for five years after the period which constitutes the basis of the calculation of the employee’s average weekly working time.
There is free choice of method as to how each employer chooses to organize the working time registration system.
Generally, the requirement for registration of the employee’s daily working time applies to all employees, but the bill contains an exemption which allows that certain employees are exempted from the provisions of the Act on Working Hours as regards daily and weekly rest periods and maximum weekly working time, including exemption from the new requirement for registration of working time.
The exemption applies if the duration of the working time is not measured or fixed in advance due to the special circumstances of the work performed, or when employees can set their own working time if the employees can make independent decisions or have managerial duties. The exemption does not apply to employees whose working time is measured only partially, fixed in advance or may be fixed only partially by the employee.
If an employee is covered by the exemption, the employer is obligated to state in the employment agreement that the employee is not covered by the rules of the Act on Working Hours as regards daily and weekly rest periods and maximum weekly working time.
Which employees are covered by the exemption depends on a specific assessment. The exemption must cover employees where the arrangement of the working time is in its entirety up to the employee, or it is impossible to arrange the working time in advance.
According to the bill, the exemption concerning so-called “self-organizers” must be construed narrowly. It will therefore apply to certain senior managers whose working time cannot as a whole be measured or set in advance as they are not required to be at the workplace at specific hours but can independently set their own timetable. The exemption will also apply to certain experts, experienced lawyers in an employment or academics who have considerable freedom to determine their own working time. On the other hand, the exemption does not apply to employees whose working time is measured only partially, is fixed in advance or may be fixed only partially by the employee themselves.
The bill’s second key element – Possible to enter into an “opt-out” agreement on the 48-hour rule for employees covered by collective agreements
It appears from the Act on Working Hours that the average working time in a seven-day period over a period of four months may not exceed 48 hours, including overtime work; the so-called 48-hour rule.
The bill concerns the implementation of an exemption rule under the Working Time Directive. The bill proposes that the most representative labour market parties in Denmark can agree that it is possible in relation to the collective agreement area in question to enter into individual agreements stating that the employee works more than 48 hours each week on average (the so-called “opt-out” agreement). However, the average weekly working time may not exceed 60 hours over a period of four months.
However, the ”opt-out” agreement may be entered into only as regards employees covered by collective agreement provisions concerning on call duty, including local agreements in this respect. Furthermore, the employees in question must perform functions which are critical to society. The employees must at any time and at a reasonable notice be able to withdraw their consents to work more than 48 hours.
It further appears from the bill that employers applying “opt-out” agreements must take any necessary measures to ensure the safety and health of the employees involved, for example by offering free health checks every second year.
As regards this group of employees, where an “opt-out” agreement has been entered into concerning deviation of the 48-hour rule, the employer is also subject to a registration requirement. The employer must keep updated registers of the employees in question and make the registered data available to the Working Environment Authority which may, for security or health reasons, prohibit or limit the employee’s possibility of working more than 48 hours a week on average.
Lundgrens recommends
Lundgrens will follow the legislative procedure closely and regularly inform on the implementation of the new rules. According to the Danish Parliament, the first reading of the bill is scheduled for Thursday 16 November 2023. The previous intention was that the bill was to become effective already on 1 January 2024, but based on the responses received after the external consultation, the effective date has been changed, and the bill has now been introduced and will expectedly come into force on 1 July 2024.
