Time registration after ECJ judgment – Managing claims for overtime payments
15 Jul 2020
Applying the principles set forth by the European Court of Justice (ECJ) in its 2019 CCOO/Deutsche Bank judgment, the Brussels Labour Court recently decided on the obligation for employers to implement a time registration system. The Labour Court ruled that, in the absence of such a system, the employer will have to evidence how many hours the employees have actually worked.
Judgment of the European Court of Justice
The ECJ ruled on 14 May 2019 that EU Member States must require employers to implement an objective, reliable and accessible time registration system in order to ensure compliance with the Working Time Directive (2003/88/EC), the EU Charter of Fundamental Rights, and the Directive on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC).
Following this judgment, the Belgian legislator did not deem it necessary to amend the relevant legislation, arguing that time registration was already obligatory in the framework of gliding working schedules. In addition, deviations from the normal working schedule must also be documented for part-time work.
Judgment of the Brussels Labour Court
Pursuant to a claim lodged by an employee for the payment of overtime, the Brussels Labour Court examined whether the employer has an obligation to set up an objective, reliable and accessible system that records the daily working time of each employee, and what influence not having such a system would have on a claim for overtime pay.
The Brussels Labour Court ruled - in the light of the ECJ judgment - that, if the employer has not implemented a time registration system, he will have to evidence how many hours the employees have actually worked or, at least, that the hours claimed by the employees were not performed.
This judgment constitutes a reversal of the burden of proof as, before the ECJ judgment, the employee claiming overtime payment needed to evidence that overtime was in fact performed. Based on the recent judgment of the Brussels Labour Court, the burden of proof now lies with the employer if no time registration system exists within the company.
Going forward
At the moment, Belgian law does not impose a general system of time registration. However, as Belgian courts have the obligation to interpret the legislation in accordance with the case law of the ECJ, similar case law is to be expected in the future.
The Brussels Labour Court’s ruling has re-initiated the debate on the use of time registration systems. Some are of the opinion that a time registration system is the only way to obtain clarity in the framework of disputes regarding working time. Employer organisations, however, have already stated that the obligation of having a system of time registration in place is a step backwards in an employment landscape where flexibility is on the rise, such as in the form of teleworking. For this reason, the challenge for the legislator will be to reconcile the ever-growing need for flexibility with the protection of employees’ rights as imposed by European instruments and the case law of the ECJ.
If you wish to manage the risk of claims for overtime payment today, it might, however, be recommended to introduce some form of time registration. This does not require a classic time clock system. Any system that records the hours worked in an objective manner will do, provided that it can be accessed by the employees.
If you would like to have your arrangements regarding working time and/or overtime or your work regulations checked in order to mitigate the risk of potential claims for overtime payments, please do not hesitate to contact us.
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