Bill on the recording of working time (update)

At a glance

• On 23 January 2024, the Danish Parliament adopted a bill on recording working time.

• The law provides that employers must implement an ‘objective, reliable, and accessible’ system for recording working hours.

• Some employees are exempt from the rules on maximum working time and the requirement to record working time.

• The law further introduces the possibility of an ‘opt-out’ clause/deviation from the 48-hour rule in collective agreements.

• The new amendments to the Danish Act on Working Time will enter into force on 1 July 2024.

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Update: January 2024

On 23 January 2024, the Danish Parliament adopted a bill on recording working time. The amendments to the Danish Act on Working Time will enter into force on 1 July 2024. It will likely take a couple of months for employers to install software, implement registration systems, and get employees on board.

Therefore, DLA Piper recommends that employers commence the implementation process as early as possible before 1 July 2024, to ensure compliance.

Employers should consider, for example:

• how time registration should be conducted, such as through an IT system or an app;
• engaging in dialogue with employees and their representatives on how this will function in practice;
• determining if some employees/managers will be exempted from the requirement of recording working hours;
• checking whether employment contracts and policies are phrased to align with the legal requirements; and
• ensuring compliance with GDPR in this context.

Background

Currently there is no legislation which sets out a general requirement for employers to record the daily working hours of their employees. However, following the European Court of Justice ruling in case C-55/18, the Danish Parliament asserted that it was necessary to introduce such a requirement. The purpose of the new rules is to ensure compliance with regulations regarding rest periods and maximum weekly working hours. There are no specific requirements on how the recording system should be designed, but it must be ‘objective, reliable, and accessible’ so that individual employees can measure their daily working hours. Information regarding employees' working hours must be kept for five years after the end of the period used to calculate each employee's average weekly working hours.

Exemptions

An employee will be exempt from the regulations regarding the maximum working hours and the obligation to record working hours if, due to the nature of their job, they are unable to determine their working hours in advance. An exemption may also apply if the employee has the autonomy to set their own working hours, demonstrating the ability to make independent decisions or possessing managerial authority. Whether an employee will be exempt from the rules, will require an assessment of the specific circumstances. If an employee is deemed exempt, the exemption must be stated in the individual’s employment contract.

Opt-out of the 48 hours rule in collective agreements

The option to ‘opt-out’ is limited to employees who are covered by collective agreement provisions which protect employees who perform critical societal functions, such as hospital employees, utilities, etcetera. An ‘opt-out’ clause from the 48-hour rule can be made if there is an agreement between most of the representative parties in the labor market that allow for ‘opt-out’ agreements within specific collective agreement areas. The employer and the employee will individually negotiate the ‘opt-out’ agreements. The agreement requires an employee's consent to work for more than 48 hours per week on average. However, the average weekly working hours must not exceed 60, calculated over four months. Under certain provisions the reference period can be extended for up to twelve months.